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Nego Notes Complete
Nego Notes Complete
Nego Notes Complete
Commercial Laws
- A body of law that regulates the conduct of persons, merchants, and businesses
who are engaged in trade, sales, and commerce.
Governing Laws
- Act No. 2031 otherwise known as the Negotiable Instruments Law (NIL)
[this is only applicable to negotiable instruments it does not cover non
negotiable instruments]
- Code of Commerce
- Civil Code
1
2 kind of Instruments (or document involved in commercial
transactions) 1. Negotiable
2. Non-negotiable
Note: The first thing to do is to determine whether a document is a Negotiable
Instrument.
2
not only an acknowledgement of the credit to the lessor, it is also a proof of
transaction. That the lessee entered into a contract of lease.
Note:
- Since check is not legal tender, you cannot compel the creditor to accept a check as
payment of money.
- (If the creditor refuses to accept your payment, you can deposit it to the court and it
will extinguish the obligation)
3
Classes of Negotiable Instruments
1. Promissory Note [MEMORIZE]
- 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 the note is drawn to
the maker’s own order, it is not complete until endorsed by him (Section 184.
NIL)
Original Parties
a. Payee (creditor): the person receiving the money; who the note is address
to
b. Maker (payor): the one promising
2. Bill of Exchange
- 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
upon demand or at a fixed or determinable future time a sum certain in money
to order or to bearer (Section 126, NIL).
Original Parties
a. Payee (the benificiary): to whom the document is originally addressed to
be paid
b. Drawer: the one giving the order and the person signing
c. Drawee: the person to whom the order is given, and who will pay later
on (siya yung magbabayad)
NOTE: The drawee is being ordered, but in order for him to be liable to the
instrument he needs to accept. If he does not accept he will not be liable.
Acceptance should be in writing. Once he accepts the instruments, the
drawee is now called the Acceptor. And as such he is now primarily liable
to the instrument.
NIL) 4
- When a bank certifies a check it agrees in advance to (a) accept the check when
it is presented for payment (b) pay the check out of the funds set aside for the
customer’s account (Section 189,187, 188 NIL).
Note: When the bank commits a mistake they are liable to their mistake.
5
CASES
1. Phil. Education Comp. vs. Soriano (39 SCRA 587)
Issue: Whether postal money orders are negotiable instruments Ruling: No,
because it is given by the government. It is authorized by the government, and
the government is not involved in commercial transactions. Hence, these are not
commercial documents. Negotiable instruments are for commercial transactions,
trade and commerce.
Indorsement: (dorsal — at the back) the act of signing at the back of the
instrument and addressing the instrument to another person
6
3. (for Bill of Exchange) Presentment of Acceptance: the act of presenting or
exhibiting the instrument to the drawee for his acceptance which he can either
accept or not. If he accepts he becomes the acceptor and he becomes primarily
liable to the instrument. If he does not accept, the instrument is dishonored by
non-acceptance. If it is dishonored you have to inform the other parties. Hence,
all of those who are secondarily liable will now be liable to the instrument.
4. Presentment for Payment: The person who will pay is the person who is
primarily liable (maker; acceptor).
Two possibilities
a. The person primarily liable will pay
b.The person primarily liable will not pay (dishonored for non-payment):
inform those who are secondary liable that the instrument is not being paid.
Note: if a foreign negotiable instrument is dishonoured you can “protest” (made
by a notary public).
7
First Requisite: It must be in writing and signed by the maker or drawer - There is no
form required by the law, as to the form of the instrument, as long as it is
written and signed by the maker and drawer
- An unsigned document does not give any effect at all. It does not make
the person named therein liable. Hence, the act of signing is the operative
act of making the person liable. It is the beginning of the life of a
negotiable instrument.
- Without the signature the document is merely a peace of paper
Q: Does your signature matter, what if the sign is like this (+) ? A: If
that is the customary signature of the person, it doesn’t matter. No one
can dictate how you can affix your signature.
Note: How can you negotiate something, if you know that there
is a chance you might not be able to get paid?
8
Period: A future event which is certain to happen.
Condition: A future and an uncertain event (may or may not
happen) — this is the reason why in order for an instrument to be
negotiable it must be unconditional.
Unconditional: unqualified order of promise to pay.
NOTE:
- Take note of the word reimbursement, because if the promise is
to pay out of a particular fund, it is not a reimbursement. -
Example: Your own bank account — payment out of that fund is
not negotiable because if payment is out of a particular fund then,
there is a condition. The condition is that for as long as there is
money in there. What if there is no money? Then it will make the
instrument “useless”.
- Hence, if you are going to indicate a particular fund, it is only
for reimbursement. The drawer or the acceptor will pay but he
will reimburse himself out of a particular fund. Payment is out
of the question.
9
Example: I promise to pay X 1Million as payment of the contract of
sale we entered into regarding this specific vehicle. This does not
affect the negotiability of the contract, for the instrument is
still unconditional.
10
SUMMARY:
- If you indicate that an instrument is to be paid out of a particular fund, then
that is a non-negotiable instrument.
- Section 1 is the doorway to everything; if you don’t understand this you will
not understand NEGO.
CASES:
1. Metropolitan Bank and Trust Company vs. CA, February 18, 1991 — 194
SCRA 169
Issue: Whether treasury warrants are negotiable instruments? Ruling: SC
said no. Treasury warrants is not a negotiable instrument. In this case the
document itself is stamped as not negotiable. That alone will caution
everybody that the instrument is not negotiable because it is stated in its
face that it is not negotiable. Treasury warrants are payable out of a
particular fund (in the case fund 501). It is payable on a particular treasury
account, thus it does not make it negotiable. And, when the government
issues a treasury warrants they are not entering into commercial
transactions. The government s not involved in comercial transcations.
Hence, the Treasury warrants is not negotiable.
11
2. Caltex Philippines vs. CA, — 212 SCRA 448
Issue: Whether CTD’s (Certificate of Time Deposits) are negotiable
instruments?
Ruling: SC interpreted the CTD as a bearer instrument. Since the depositor
is not named, it can pertain to anybody. Thus, the depositor is likened to a
bearer making the CTD negotiable.
12
Sec. 4. Determinable future time; what constitutes. - An
instrument is payable at a determinable future time, within the
meaning of this Act, which is expressed to be payable: (a) At a
fixed period after date or sight; or
(b) On or before a fixed or determinable future time specified
therein; or
NOTE:
Example:
a. (Death) I promise to pay A 1Million pesos after the death of the
president of the Philippines [it is certain to happen — it is still
considered as a determinable future time]
NOTE:
- Ratio for the last paragraph: For purposes of indorsement — in
order to negotiate the instrument there should be a name.
- Since it is named to a specific person, the payee should be
named.
- What if it is payable or drawn to the payee as payable? Here
being both the drawee and the payee, the drawee can pay
himself upon maturity from the funds belonging to the drawer
in his possession: once accepted is equivalent to a promissory
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note in favor of the drawer. [In short, MERGER? — the drawee and drawer
is one]
- Drawer as payee: this authorizes the drawee to pay the drawer/himself.
The situation is that the drawer has funds with the drawee and he wants to
withdraw the funds for himself.
- Maker as payee: Here the maker promises as follows “I promise to pay to
the order of myself, 1M”: the instrument is not complete until the maker
endorses under Section 184 (Where a note is drawn to the maker’s own order, it
is not complete until indorsed by him).
- Q: Is it possible that the maker can draw an instrument making him as
the payee?
- A:
- Q: Is it possible for an instrument to be payable to two or more payees
jointly?
- A: Yes. The endorsement of all is required unless one has been
authorized by the others. When it is payable to one or some of several
payees, the endorsement of any one will be sufficient.
NOTE:
- When the instrument is initially an order instrument. The name
of the endorser or endorsee is blank — it is merely blank. In this
case, the instrument is payable to bearer.
- The effect of bearer instrument is that the instrument is payable
to whoever is in possession or is the holder of the bill.
Although, when “bearer” precedes the name of the person
specified in the bill, the instrument is non-negotiable.
- Example: Pay to bearer Augustin Laban the amount of 1 Million (the
word bearer or order here precedes the name of the person. It is only
payable to the specific person in the instrument. Hence, it is non
negotiable.)
- When it is payable to the order of a fictitious or non-existing
person, the instrument’s being payable to bearer depends on
the intention of the person making it so payable.
- Example: It is payable to Juan dela Cruz, a person or the symbol of the
Filipino race. If the intention is easily deduced that the payee is clearly
fictitious, as when: it is payable to Superman, the instrument is
payable to bearer.
- The instrument in order to be considered negotiable must
contain the so-called “words of negotiability. It must be payable
to order or bearer” [Salas vs. CA, 181 SCRA 296]
- Without order or bearer in the instrument it makes it non
negotiable.
CASES:
1. Ang Tek Lian vs. CA, 87 Phil. 383
Issue: Whether a check payable to cash needs indorsement
Ruling: No, because cash does not purport to be a name of the
person and these facts makes the instrument a bearer instrument.
As such, it does not need indorsement., it only needs delivery to
be negotiated.
2. PNB vs. Rodriguez, G.R. No, 160325, September 26, 2008 As a
rule, if the payee is fictitious or not intended to be the true
recipient of the proceeds of the check it is considered as a bearer
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instrument according to Secs 8 and 9 of the NIL. The distinction
lies in the manner of their negotiation. An order instrument from
the payee or holder requires endorsement. A bearer instrument
does not require endorsement, it is only negotiated by mere
delivery — negotiable by mere delivery.
If there are omissions or things not included in the instrument, there are 2
possibilities:
1. negate the instrument’s negotiability
2. It will not
there are omissions that will not affect the negotiability of the instrument.
NOTE:
**GENERAL RULE: DATE is not necessary for negotiability
- Rules regarding dates:
17
a. The fact that the instrument is not dated is addressed by Sec
17(c) which states that where instrument is not dated, it will
be considered dated as of time it was issued.
b. Where the instrument or an acceptance or any endorsement
thereon is dated, such date is deemed prima facie to be the
true date of the making, drawing, acceptance, or
indorsement as the case may be (Sec 11, NIL).
20
(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
- The fact that the instrument bears a seal is not significant as it is a
mere formality (notarial seal example). A seal is merely a formality.
CASES:
1. Ponce vs. CA, 90 SCRA 533: The fact that the instrument
designates a particular kind of current money in which payment is
to be made is possible, the agreement to pay in foreign exchange
when declared null and void and of no effect, does not defeat a
creditor’s claim of payment, but to be made in lawful Philippine
legal tender.
- Relate to RA 529
- Even if the stipulation as regards a currency is void, it
doesn’t affect the creditor’s claim for payment. It doesn’t
mean you are excused from payment (only the
stipulation as to the currency is void).
21
NOTE:
Q: What if the instrument provides for an act aside from payment of
money?
A: It makes the instrument non-negotiable. It gives doubt on the
instrument.
22
CASE:
**PNB vs. Manila Oil Refining and By-Products Company, 43 Phil 445
ISSUE: Whether provisions in notes authorizing attorneys to appear and
confess judgments against makers should not be recognized in
Philippine jurisdiction by implication.
RULING: It is against public policy, thus void. Yes it may be true that it
will lessen the time of the court with certain cases, of the cost of
litigation, etc., but in the end it will deprive the makers of their day in
court to be heard.
- Even if the stipulation of confession of judgment authorizing the
lawyers to do so is void, it will not affect the rightful claim of the
creditor to demand payment. It will not make the whole instrument
void.
24
Q: What if theres a discrepancy between the two, the amount in
words and in figures? Which should be prevail?
A: Under our rules, not merely on commercial documents, but also in
contracts. If there is discrepancy between the amount of words and
figures and the amount in words will prevail because it is harder to
commit a mistake when you write them or you spell it out in words.
That is why the words are given more credence.
- Conversely speaking, when the words are ambiguous or uncertain
there are times that it cannot also read the amount in words, then
the reference may be had to the figure to fix the amount in the
instrument. But if the words ambiguous, then go to the amount
figures.
- This is important not only in negotiable instrument but also in
commercial instruments, documents, also in contracts , ordinary
contracts.
25
Sec 17 (d) explained
Q: What if there is conflict to the face of the instrument, between
written or printed provision of the negotiable instrument? A: Then
our rules say that the written provisions prevail, because if you are
going to write we are more assured of your real intentions. If it is
written by the person concerned, we are more assured of his/her real
intentions, and it is harder to commit mistake when you are writing
thus, the written provisions of the instrument prevails over printed
ones.
** Succesion
Holographic wheel is entirely written by the descendent, and it has more
value that the one is printed.
26
- In a bill of exchange there is person called the drawee — it is the
person to whom the instrument is being ordered. The drawee will
be the one to accept the instrument.
- In this case, the 1st part is promissory note, and if you look up the
totality there’s an indication that it could be also be the bill of
exchange, because you have to present the instrument to Mary.
- The rule says that it is in the option of the holder whether to treat it
as a promissory note or a bill of exchange —it’s the call of the
holder.
27
Q: What if there is uncertainty to the signatures found in the
instrument?
Ex. What if sa promisorry note may pirma sa harap aside from the maker. For
the bill of exhange aside from the drawer or acceptor there is another
signature.
A: The rule says, that if there is a doubt, or the signature is not clear, as
regards his capacity to the instrument, then he is deemed to be an
endorser.
- Relate this topic with our rules in civil law: in any stipulation
in case of doubt, then the provision that requires lesser
obligation that entails lesser rights will be presume (Not
absolute, merely a presumption).
- Consistent also, with our negotiable instruments law, in case
there is doubt on the signature, let’s look at the capacity who
assumes lesser liability — and who assumes lesser liability?
indorsers, ecause endorsers are merely secondarily liable, or
even not liable at all. The one who are primarily liable to the
instrument are the maker and the acceptor. If there is a
signature in front, aside from the maker and the acceptor
then he is deemed to be the endorser.
- As regards the positioning of the signature, the signature of
the maker usually is found at the lower right-hand corner.
And the drawee is at the left lower left hand corner of the
instrument. When it comes to negotiations or transfer of the
instrument through indorsement they are found at the back.
- NOTE: As regards signature, it could happened, that
signatures found at the front of the promissory note are the
makers, co-maker.
CASES:
Astro Electronic Corporation vs. Phil. Export and Foreign
Loan Guarantee Corp
ISSUE: Whether Roxas who signed promissory notes as
president and in his personal capacity be solidarily liable with
Astro Electronic Corp.
28
FACTS: In this case, Roxas is the president of the Astro Elec Co.
they got loan from 1 entity, Phil trust co, and the amt 3M
covered by 3 promissory notes. Roxas signed the promissory
note in front in his capacity as the president of Astro and signed
also in his personal capacity.
Now, they are suing him also, saying that Roxas is solidarity
liable with astro corporation because of his signature. Are they
correct?
RULING: Yes, because persons who write their name on the
face of the promissory notes are makers, promising that they
will pay to the order of the payee or any holder according to its
tenor.
If it is promissory note. If one signs in front then he is signing as
a maker. But the general rule says, if there Is doubt as to the
signature he will be deemed as the endorser — this is only a
presumption. If they look at it, with the totality of the
circumstances that you’re making yourself solidarily liable.
**OBLICON
In any contract or stipulation, or any interpretation if contracts, we said that
as the General rule, the obligation of 2 or more obligors are joint.
29
Exception, solidarity liability will only come in, when it is expressly
stipulated or when the nature of the obligations requires solidary liability.
30
Example 3: I/We promise to pay A or order Php500.00 signed by B and C In this
case, the word I is controlling, just like the case of PNB vs Concepcion
Mining. The supreme court expressly stated that “I” dominates. It is read as
I promise to pay. Look also, Republic Planters Bank vs CA, these are the
cases of I promise to Pay — that their obligations is Solidary.
ISSUE: Whether the corporate treasure is liable for the amount in the
promissory notes?
RULING: The term is I promise to pay signed by the treasurer on behalf of
the corporations. The corporations and the treasure are solidary liable
because of the word “I promise to pay. “
**same cases
Sps. Evanghelita vs. Mercator
Ilano vs. Honorable Espanol
**Those are the ways or rules to interpret an instrument in case there are
doubts or ambiguities on the contents of the instrument.
**STUDY IT WELL BECAUSE IT WILL ALSO APPLY TO OTHER
CONTRACTS
[September 8, 2020 — EPISODE 9]
Recap
- Rules on the interpretation of Negotiable instruments [Sec 17] - The Life of a
Negotiable Instrument — It starts with the (1) issuance. The issuance of the
instruments is partly with mechanical act writing of instruments, and giving it to the
first holder. If it is a promissory note give it to the payee if it is a bill of exchange, you
give it to the drawee who will accept the instrument. The next step is (2) negotiation,
this is merely the transfer of an instrument from one person to another , in such
a way that the person who will received the instrument will now be considered
holder. Holder, is a technical term which implies rights as against previous
holders, those people who are primarily liable to the instrument.
The Negotiation
- If you have commercial document or instrument.
Q: What are the modes of transfer? How do you transfer that
document to another person?
A1: By Assignment, it is the transfer of rights whether real or
personal rights to another person called the assignee. The assignee
will just simply be put in the position of the assignor and acquires
no greater right than the assignor.
Assignor: the person transferring a right over a real or personal
property
Assignee: the person where the right is transferred.
32
Example: death, the dead cannot assign or negotiate the instrument but it
has to be transfer to somebody else, hence it is transferred by the operation
of law [the death of the person transfers to the heirs his assets].
NOTE:
- If the instrument is originally payable to bearer, it will always be
payable to bearer [all throughout his life]. If the instrument is
payable to order, it could be transformed into a bearer instrument.
33
NEGOTIATE IT THROUGH DELIVERY BECAUSE A BEARER
INSTRUMENT WILL ALWYAS BE A BEARER INSTRUMENT.
SUMMARY
Negotiation Assignment
Solvency — your assets are more than your liabilities. You have
enough assets to pay your liabilities.
Insolvent — your liabilities are more than your assets. In case you
are declared insolvent, since your assets cannot pay for all your
liabilities, the court will order that all your assets will be under the
control of all your creditor (bahala na sila sinogn maunang
mababayran).
continuation
Negotiation Assignment
34
CASES
1. Sesbreño vs. CA [READ!!]
Issue: Whether a non-negotiable promissory note be assigned? Ruling:
Yes, through assignment — THE ASSIGNEE ACQUIRES NO BETTER
TITLE OR RIGHT THAN THE ASSIGNOR. Non-negotiable instrument
can be transferred by way of assignment
2. Consolidated Plywood Inc. vs IFC Leasing (149 SCRA 448) Issue: Whether the
promissory note is negotiable (EFFECTS). Ruling: No, because it does not
provide that it is payable to order or bearer. It does not pass section 1 of
NIL. It does not have the words of negotiability. It does not require with the
requisites of negotiability under sec 1, hence, it is non-negotiable. As such,
you can only transfer it through assignment and not negotiation.
Negotiation
- It only applies to negotiable instruments or the instruments that have passed
the requisites of negotiability on Sec 1.
35
Payable to Bearer
- [Read Sec. 40 in relation to sec 30]
- Where an instrument, payable to bearer, is indorsed specially, it may
nevertheless be further negotiated by delivery; but the person indorsing
specially is liable as indorser to only such holders as make title through his
indorsement.
NOTE: If it is bearer instrument you just delivery, no need to sign anything in
the instrument.
Q: What if the holder negotiated the instrument not by mere delivery but
by indorsing it, what is the effect?
A: Since it is a bearer instrument it can still be negotiated by delivery because
a bearer instrument is always a bearer instrument. Even if there is a special
indorsement, you can still negotiate it by mere delivery. The implication of
special indorsement is that, the person indorsing it specially is liable as
indorser not only to such holder with whom he indorsed as make title to his
indorsement. All of those holders that can trace titles to his special
indorsement he is liable.
- An instrument payable to bearer is not converted into an instrument
payable to order by being indorsed specially. However, the person
who indorsed specially is liable only to those holders who can trace
their title to the instrument by a series of unbroken indorsements
from such special indorser.
- Even if it is indorsed spec
Payable to Order
- Relate Section 30 and 49
- Refresher: “If the contract is completed by delivery, what is that kind of
obligation?” —> REAL OBLIGATION
- In negotiable instruments, if it is payable to order you negotiate it by
indorsement and is completed by delivery.
- Scenario: What if it is an order instrument and the holder failed to indorse it,
he just delivered? —> [SECTION 49] Where the holder of an instrument
payable to his order transfers it for value without indorsing it, the transfer
vests in the transferee such title as the transferor had therein, and the
36
transferee acquires in addition, the right to have the indorsement of the
transferor. But for the purpose of determining whether the transferee is a
holder in due course, the negotiation takes effect as of the time when the
indorsement is actually made. —> The holder is not a holder in due course
because the negotiation is incomplete. He merely acquires the title of the
transferor and the right to have the indorsement of the transferor, in order to
complete negotiation. —> the holder becomes a holder in due course only
when the indorsement is actually made, and that’s where negotiation is
complete.
- Without the indorsement he cannot be considered a “holder” within the
definitionder Sec. 191 and thus, cannot negotiate it. He also cannot be
considered a “bearer” since the instrument is not payable to bearer.
- Incomplete negotiation cannot convert the instrument into bearer instrument.
It is merely Equitable Assignment.
Indorsement
- The writing of the name of the payee on the instrument with the intent either
to transfer the title to the same, or to strengthen the security of the holder
assuming a contingent liability for its future payment, or both.
Example: “The face of the promissory note made by Sam Gabriel shows the
following:
I promise to pay Sans Miguel or order the sum of Php. 10M
Sgd. Sam Gabriel”
CASES:
1. Metrobank vs. BA Finance Corp., G.R. No. 179952; December 4,
2009
FACTS: A checks payable to the order of X and Y was deposited to a
bank (collecting bank) with the indorsement of X. X subsequently
withdrew the entire proceeds thereof. State the implications.
NOTE: The collecting bank or last indorser, generally suffers the loss
because it has the duty to ascertain the genuineness of all prior
indorsements considering that the act of presenting the check for
payment to the drawee is an assertion that the party making the
presentment has done it duty to ascertain the genuineness of prior
indorsements. [Who will suffer the loss in case of mistakes — the
collecting bank]
Kinds of Diligence
a. Ordinary
b. Diligence of a good father of a family
c. Extraordinary
Kinds of Indorsement
a. Special and Blank (Sec. 34 & 35, NIL)
b. Conditional (Sec. 39 NIL)
c. Qualified (Sec. 38 NIL)
d. Restrictive (Sec. 36 & 37, NIL)
CASES:
2. Villanueva vs. NITE (GR. no. 148211, July 25, 2006)
Issue: Can a holder sue the bank if the latter refuses payment of a check
notwithstanding sufficiency of funds?
41
Ruling: No, the banks are liable only when they accepts and certifies the
instrument — in the bill of exchange we state that the drawee is only liable if he
accepts it, without acceptance then the bill of exchange is considered to be dishonored
by non-acceptance. A check for that matter is a special kinds of bill of exchange. The
rules are similar. Hence, you cannot compel the bank to encash the check even
if there is sufficiency of funds in the depositor’s account. The bank has the
right to reject or refuse payment.
A check of itself does not operate as an assignment of any part of the funds to
the credit of the drawer bank, and the bank is not liable to the holder unless it
accepts or certifies the check (Sec 189). Thus, if a bank refuses to pat a check
(notwithstanding the sufficiency of funds), the payee holder cannot sue the
bank. the payee-holder should instead sue the drawer who might in turn sue
the bank. Section 189 is a sound law based on logic and established legal
principles; no privity of contract exists between the drawee-bank and the
payee.
b. Indorsement in Blank
- An indorsement in blank specifies no indorsee, and an instrument so
indorsed is payable to bearer, and may be negotiated by delivery. - Effect:
The instrument payable to order becomes payable to bearer. Hence, it can
be negotiated through delivery
- Sec. 35. Blank indorsement; how changed to special indorsement. - The
holder may convert a blank indorsement into a special indorsement
by writing over the signature of the indorser in blank any contract
consistent with the character of the indorsement [21:00].
- The holder may convert a blank indorsement into a special indorsement
by writing over the signature of the indorser in blank any contract
consistent with the character of the indorsement. In this case, the
holder may write his name over the signature of the indorser making it
appear that the latter indorsed the instrument to him.
- However, the holder cannot write anything over the signature of the
indorser which is not consistent with the character of the indorsement.
Hence, the holder cannot write over the signature of the indorser the
following, among others: “Protest waived” or “Notice of dishonor
waived”, as they are material alterations of the contract created
thereby.
43
- A conditional indorsement is one which is dependent upon a
contingent event that may or may not happen
Example: “Pay to X, or order if it rains on 12, 2020”
- If the instrument at its face is originally negotiable, a conditional
indorsement will not render it non-negotiable. In other words, a
negotiable instrument which has been indorsed conditionally will
continue to remain negotiable notwithstanding the presence of the
conditional indorsement.
- What is conditional is only the indorsement, not the promise or order
to pay. Hence it will not make the instrument non-nehotiable. - In
conditional indorsement, the party primarily liable on the instrument
may disregard the condition and pay the instrument even if the condition
has not been fulfilled.
- In such a case, the instrument is discharged and the person primarily
liable thereon is freed from any further liability on the instrument; but
the recipient of the payment will have to hold the same in trust for the
party who made the conditional indorsement.
44
Sec 65, NIL: Every person negotiating an instrument by
delivery or by a qualified indorsement warrants:
(a) That the instrument is genuine and in all respects what it
purports to be;
(b) That he has a good title to it;
(c) That all prior parties had capacity to contract;
(d) That he has no knowledge of any fact which would impair
the validity of the instrument or render it valueless.
But when the negotiation is by delivery only, the warranty
extends in favor of no holder other than the immediate
transferee.
NOTE:
- If a qualified indorser violates any of this, he can be liable. - If
the primary liable person fails to pay the instrument, then, you
cannot bind the qualified indorser — this is because of the
qualified indorser.
- Consequently, if the instrument is not genuine or that it is a
forgery, the qualified indorser is liable for the warranties.
- If the qualified indorser does not have good title to the
instrument; or that prior parties did not have capacity to
contract. e.g. by reason of minority; or that he has knowledge
of facts which would impair the validity of the instrument or
render it valueless — he will be liable to those warranties.
- A qualified indorser, as a rule, cannot be held liable if the
instrument is dishonored by reason of the bankruptcy or
insolvency of the party primarily liable thereon.
- However, if he had knowledge of the bankruptcy or
insolvency at the time he indorsed the instrument qualifiedly,
he is liable thereon for violating his warranty.
c. Vests the title in the indorsee in trust for or to the use of some other
persons [Trust type of indorsement]
Example:
“Pay to Marina in trust for Ada”
Sgd. Antonio
** Ada is the beneficiary Marina will only collect payment in trust of
Ada. In this case Marina cannot use the proceeds of the instrument for
her own use.
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** The indorsement passes title to Marina but she holds the
same in trust for Ada. In this example, Marina cannot use the
proceeds of the instrument for her own use and benefit. She
doesn’t own the proceeds. The equitable title belongs to Ada.
ILLUSTRATION
a. To receive payment
- The holder in a restrictive indorsement has the right to
receive payment of the instrument, unless the
character of the indorsement is inconsistent with such
right.
- Hence, if the agency type of indorsement is only “for
deposit”, the holder in this case may not receive
payment of the instrument but must merely deposit
the instrument for and in behalf of the indorser.
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c. To transfer his rights when authorized by the form of the
indorsement
- The holder in a restrictive instrument can further
negotiate the instrument if the indorsement contains
the words of negotiability; otherwise, the holder
cannot do so.
Example: “Pay to Marina for collection”
Sgd. Antonio
**This restrictive indorsement contains the words of
negotiability as the instrument is payable to order.
**It means that the instrument is payable to Marina or
to whomever Marina shall order to be paid as payee.
**Hence, in this restrictive indorsement Marina can
still negotiate the instrument to another, but the latter
shall acquire only the rights of Marina, that is to collect
for and in behalf of the indorser who restrictively
indorsed the instrument.
** The transferee of Marina can acquire no better rights
than Marina.
NOTE:
- A person who signs an instrument not as maker, drawer or acceptor
is deemed to have signed as an indorser. If it is not clear in what
capacity a person signed the instrument, he is deemed to be an
indorser.
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- If a person wants to be bound in some other capacity, he must clearly
indicate by appropriate words the limits of his liability on the
instrument.
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d. If a person signs an instrument “For purposes of identification
only”, he incurs no liability on the instrument. [IMPORTANT]
NOTE:
- Once you put your signature, there is now an inherent liability
on your part.
- The irregular indorser is secondarily liable. All of those who
holda the instrument after delivery of the maker or drawer, the
irregular indorser will be liable.
- Accommodation Party: One who signs the instrument without
consideration. You are making yourself liable without receiving
any valuable consideration at all.
- TAKE NOTE OF THE LIABILITY —> LIABLE AS AN
INDORSER
- Your signature appears thereon but you are not a maker or a
drawer, you are an irregular indorser. You are not an indorser
because to be an indorser you have to indorse after delivery
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[September 22, 2020 — EPISODE 13]
2. Even if the name of a person appears on the instrument but absent his signature, he
cannot be held liable thereon. For instance, the name of the drawee is written on the
instrument but because his signature is nowhere in the instrument, the drawee is not liable
for the amount of the instrument.
• The manner of affixing your signature or act of putting your signature in
the instrument is the operative act that makes you liable to the instrument •
Paramount rule: You are not liable to the instrument unless you singed.
3. Ordinarily, on the face of the instrument (in the front) can be found the signatures of
the maker, drawer, and acceptor.
4. At the back of the instrument, we usually find the signature of the payee as first
indorser; and so on by other parties in the sequential order of their participation as
indorsers of the instrument. Every indorser is liable to all subsequent indorsers as
a general rule. However, this rule is not observed in the case of an irregular
indorser.
- Example: “Pay to the order of Agustin Laban or Order”
- Root-word of indorser is “Dorsal” —> at the back
5. An irregular indorser is so called because his signature is out of place. Instead of the
expected signature of a party to the instrument, the signature of the irregular
indorser is found in its place. (hindi kasi dapat andoon yung signature niya)
- For instance, where we expect the signature of the payee as first indorser,
but we find instead the signature of the irregular indorser as first
indorser and the signature of the payee as second indorser.
** Ordinarily the payee named in the instrument is the first indorser, kasi the
instrument will be delivered to the payee. And it is up to him whether he will
negotiate it or he will just wait for the maturity date and then encash it.
NOTE:
- Liability refer to Sec 64 (IMPORTANT)
- Indorser, the liability is secondary; the maker and the acceptor are the
one primarily liable.
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- The maker is the one expected to pay in the instrument because he is the
one promising to pay; or the acceptor because he is the one who
accepted to pay the instrument (bill of exchange).
52
- Exception: when one of the joint payees has the authority to indorse for the
others. Also with partnership —> If the joint payees are partners the act of one
partner binds the other. —> They are agents of one another, they represent one
another, hence the act of one will bind the other (MUTUAL AGENCY).
Prima facie:
- On its face (lower echelon of evidence)
- It is a presumption, it can be over turned by other evidence; it can be
rebutted by other evidence.
Example:
“Pay to the Order of the Cashier, Toyota Motors Corporation the sum of Php.
5,000,000
Signed Marco
To: Alfonso”
- The prima facie presumption is that the bill of exchange is payable to
Toyota Motors Corporation. Thus, the bill may be negotiated by the
cashier or by any officer of Toyota Motors
- In as much as the presumption is only prima facie in character, it
admits of proof to the contrary. Thus, it may be shown by contrary
evidence that the instrument is payable to the cashier in his personal
capacity and not to the corporation.
- You can present “exculpatory” evidence that will rebut.
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- This does not make the instrument void. You can put the correct spelling of your
name and sign it.
Example:
“I promise to pay Edmond Li or order the sum of Php. 5, 000, 000.00 upon
demand Signed (Sgd) Perry Uy”
** The correct name of the payee is Edmond Lee. Since his name is misspelled
Edmond Lee must indorse the note by signing as “Edmond Li” as erroneously
written and add, as he may wish, his correct name afterwards.
**Right name and Signature lang sa baba —> it does not affect the validity of the
indorsement or the instrument
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EXCEPTION: When the indorsement is dated after the maturity of the
instrument.
- Sec 45 “Time of indorsement; presumption. - Except where an indorsement
bears date after the maturity of the instrument, every negotiation is deemed
prima facie to have been effected before the instrument was overdue.”
- Indorsement is deemed prima facie to be indorsemd before it became over due
(kung walang date yung indorsement)
g. Place of Indorsement
- For venue of action
- Sec 46 “Place of indorsement; presumption. - Except where the contrary
appears, every indorsement is presumed prima facie to have been made at the
place where the instrument is dated.”
- The prima facie presumption that the indorsement was made at the place where
the instrument was dated is important in order to determine what law will
apply as different states may have different laws.
- EXCEPTION: if it is shown by contrary evidence that the instrument was dated
in one place and the indorsement thereof occurred in another place.
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- In order words, the order instrument becomes a bearer instrument due to the
blank indorsement. In this case, all special indorsements subsequent to the blank
indorsements may be stricken out by the holder because they are not necessary
to this tile. This is because the holder then will be deemed to have acquired title
to the instrument thru the blank indorsement.
- When the order instrument is converted into a bearer instrument due to blank
indorsement, you can strike out past indorsement after the delivery, after it
became a bearer instrument because you can always claim the title to the person
who have indorsed it to you by way of delivery only (once it became a bearer
instrument)
Example:
A, maker, executed a promissory note in favor of B or order, payee. B negotiated by special
indorsement completed by delivery to C; C negotiated by blank indorsement (it converts the
instrument into a bearer instrument) and delivered the note to D; D negotiated by special
indorsement and delivered the note to E; E to F, holder.
** In this example, although the instrument is originally payable to order, the same
became a bearer instrument due to the blank indorsement of C. At this point, the
note can now be negotiated by mere delivery. F, holder can strike out the
indorsements E and D because they are not necessary to his title. F can trace his
title to C (who converted the instrument to a bearer instrument which can be
merely delivered by delivery). After the indorsement of E and D are stricken out,
what will remain is the blank indorsement of C. It will appear therefore that F
acquired title to the instrument thru the blank indorsement of C.
RATIO: their indorsement are not necessary to the title of F kaya pwedeng i-strike
out.
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- In the same manner, all subsequent indorsers will likewise be discharged from
liability. This is so for reasons of equity because by discharging a prior party, the
subsequent party will be deprived of the right to ran after the prior party in the
event the holder holds him liable thereon.
- In the same example given above, let us suppose that F struck out only the
indorsement of D and did not strike out the indorsement of E. By striking out
the indorsement of D, E is automatically also relieved from liability on the
instrument (under the law).
- This is only fair because by the voluntary act of F, D is now relieved from liability
and E cannot now go against D. For reasons of Equity, and in fairness to E, the
latter should also be relieved from liability.
- In this case, he is not a holder in due course because there is no valid negotiation. He
only becomes a holder in due course from the time indorsement is made.
CASE:
1. Metropol (Bacolod) Financing vs. Sambok Motors Co., 120 SCRA 864 1983
[READ THE CASE]
ISSUE: Whether Sambok motors is a qualified indorser, thus it is not liable upon the
failure of payment of the maker?
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RULING: No. A qualified indorsement constitutes the indorser a mere assignor of the
title to the instrument. It may be made by adding to the indorser’s signature the words
“without recourse” or any words of similar import. Such indorsement relieves the
indorser of the general obligation to pay if the instrument is dishonored but not of the
liability arising from warranties on the instrument as provided by Sec 65 of NIL.
However, Sambok indorsed the note “with recourse” and even waived the notice of
demand, dishonor, protest, and presentment.
ISSUE: Who will bear the loss resulting from the forged indorsements?
1. As to the maker, he assumes the liability of the maker upon preparation of the note.
His liability as a maker arises when he receives valuable consideration, he signs
the instrument and delivers it to the holder for negotiation.
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NOTE: The holder should seek payment from the maker
2. As to the drawer, he must sign the instrument, receive valuable consideration and
deliver the instrument to the holder for the purpose of negotiation.
- In a bill of exchange it is the acceptor who is primarily liable — drawer is only
secondarily liable
- The premise is that the drawer has funds to the drawee (or acceptor), wherein the
holder can get the payment from
NOTE:
- When you talk about signature and forgery, they come hand in hand. You can only forge a signature. -
GENERAL RULE: The general rule is that no person can be held liable on the instrument if his
signature does not appear thereon.
- A thumb mark is also accepted for those people who don’t know how to read and write. - You
will never be liable in a document or instrument if your signature does not appear thereon.
1. As to a maker, he assumes the liability of maker upon preparation of the note. His liability as a
maker arises when he receives valuable consideration, he signs the instrument and delivers it to
the holder for negotiation.
NOTE:
- In order for the maker to be liable, he must sign the instrument and delivers the instrument for
negotiation. If you are the maker, in order for you to be liable, you must prepare the
instrument, sign the instrument and you must deliver.
- If you did not deliver the note, then another problem arises.
2. As to a drawer, he must sign the instrument, receive valuable consideration and deliver the
instrument to the holder for the purpose of negotiation.
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- Even if you prepare a bill of exchange and sign it, if there is no intention to deliver you will not be
liable just the same.
Q: What if one person prepared a promissory note and bills of exchanged, signed it
and kept the instrument in his drawer and he did not deliver it, now somebody stole
it? [This will be elaborated later]
A: There is a problem here, thus the drawee must sign the instrument and deliver it, for the
purpose of negotiation
3. As to an acceptor, before he signs, is a mere drawee, and has no liability because his signature
does not appear on the instrument. He must sign in order to be liable, and his status is then
changed from a mere drawee to an acceptor. He is not liable as an acceptor unless he receives
valuable consideration, signs the instrument and delivers it to the holder for the purpose of
negotiation.
Q: In a bill of exchange, the drawer will identify the drawee. The drawee is supposed
to pay and the drawer names the drawee. Is the drawee liable?
A: No, you will not liable as a drawee because your signature does not appear in the
document.
IN SHORT: A drawee must sign in the instrument for him to be liable. ONCE SIGNED
THE DRAWEE IS NOW THE ACCEPTOR
Take note without delivery there is another problem (take note of the delivery).
4. As to an indorser, his position is similar with that of a guarantor. He must receive valuable
consideration, sign and deliver the instrument, for the purpose of negotiation before he can be
made liable.
- Indorses are those who got the instruments and negotiate it with another. We said that indorsers are
not primarily liable to the instrument but secondarily liable.
- Indorsors are similar to guarantors.
- Guarantor is a person who promise to pay the debt of another if the person primarily liable fails to
pay.
Example: In a contract of loan, if one person is contracting a loan from the creditor,
sometimes the creditor needs assurance and he will require you a guarantor who is another
person not taking up the loan but he promises the creditor to pay if the principal fails to
pay.
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- An indorser is like a guarantor. They are only secondarily liable on the instrument. As an indorser he
must receive valuable consideration, sign and deliver the instrument for purposes of negotiation in
order for him to be held liable.
- If he signed the instrument and did not deliver, again that is another problem.
Sec. 22. Effect of indorsement by infant or corporation- The indorsement or assignment of the
instrument by a corporation or by an infant passes the property therein, notwithstanding that
from want of capacity, the corporation or infant may incur no liability thereon.
- That an indorsement or assignment of an instrument by corporation ultra vires or by an infant
passes the property therein, notwithstanding that from want of capacity, the corporation or infant
may incur no liability thereon [they are real defenses, they can use it as a defense in order to
avoid liability] (SECTION 22, NIL — ultra vires).
- When you talk about corporation, it is an artificial being created by law and it can only act within
the bounds of its authority given by the state.
Example: If you put up a lending corporation, then your authority is only limited to lending
only and all inherent or incidental lending transactions. As a lending corporation, you cannot
engage in transportation business. That is what ultra vires.
- Ultra vires act beyond or outside the authority.
- If a corporation endorses and it is within its authority, then it is valid.
- Corporation ultra vires and infant will not incur liability and can use incapacity as a real
defense to incur no liability. (Take note of this)
- You have learned in civil law that contracts entered into by a minor is voidable (valid until
annulled) because there is vitiation of consent. In this case, when the minor or corporation ultra
vires indorses the instrument, it is valid until annulled hence, it passes property therein.
- On the part of the minor or corporation ultra vires, it may excuse themselves from criminal
liability.
- In both instances, endorsements are voidable –valid until annulled- so that they pass good
title. Therefore, parties prior to minor or corporation cannot escape liability by setting up as
defense the incapacity of one of endorsers.
- Parties prior to the minor or corporation ultra vires cannot escape liability by setting up the
defense of incapacity. This defense available to the minor and the corporation is a defense
personal only to them and cannot be pass on.
- Other parties to the instrument cannot use your want of capacity as their own defense, because
minority and lack of authority is something personal t the minor and the corporation
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2. Indorsement by a corporation
- Where the indorsement or assignment made by a corporation is ultra – vires, title to the
instrument likewise passes although the corporation may incur no liability thereon.
Example 1: Juan executed a promissory note, payable to Jose, a minor, who then endorses
the note to John, then to Max, the holder. Max may not be able to hold Jose liable, but he
may proceed against Juan due to his warranty (Sec 60 to 65) that the payee exists and his
then capacity to endorse and as against John, who warrants that the instrument is valid
and subsisting. The exception to this rule is the presence of actual fraud committed by
the minor or the corporation. As when the minor fraudulently claimed that he is not a
minor.
Juan (Maker of PN) payable to —> JOSE MINOR (PAYEE), indorses the note to —>
JOHN, indorses it to —> MAX (HOLDER).
M (Maker) —>P (Payee) —>A (Minor) —> B —> C —> D —> H (Holder)
A: As to the holder H, whether holder in due course or not, he may collect from M and P
who cannot raise the defense that A is minor because A’s indorsement passes the title to
the instrument (sec 22).
Also, if M fails to pay, H, whether a holder in due course or not, may collect from B, C,
and D because as indorsers, they are secondarily liable and they warrant “that all prior
parties had capacity to contract.” Note memorize section 65 and 66 (Warranties).
H, even if he is a holder in due course, may not collect from A because A’s minority is a
real defense (defense that can be used even against a holder in due course). Then
again, EXCEPT in case of FRAUD
M —> P(Minor & Payee: babayaran) —> A —> B —> C —> D —>H
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payee and his then capacity to indorse (Sec. 60). Second, the indorsement of P although he
is a minor passes title (Sec. 22, NIL). Thus, H the holder has good title to the instrument.
Example 4 (maker is the minor): Suppose it is M who is the minor. Will he be liable under
the instrument?
A: No, because his minority is a real defense, However, if the person primarily liable has a
real defense, then the holder can go to those secondarily liable. He can go to indorsers who
will be liable on their warranty that all prior parties had capacity to contract.
GENERAL RULE ON SIGNATURE: No person can held liable on the instrument if his signature
does not appear thereon. Even if your name is there but you did not sign the document, you will not be
held liable.
EXCEPTIONS:
1. One who signs in a trade or assumed name will be liable to the same extent as if he had signed
in his own name (Section 18).
NOTE:
- You use the alias “tiongsan Harrison” and signed it, even though it is not your name, the person
signed to the same extent as if he had signed in his own name.
- Sec. 18. Liability of person signing in trade or assumed name. – No person is liable on the
instrument whose signature does not appear thereon, except as herein otherwise
expressly provided. But one who signs in a trade or assumed name will be liable to the
same extent as if he had signed in his own name.
2. When an authorized agent signs for and on behalf of his principal, the principal is liable
although his signature does not appear on the instrument (Section 20).
NOTE:
- If you assigned an agent to do an act on your behalf, the agent acts based on the authority you
had given him, in good faith and he disclosed his principal or indicated that he is acting within
the authority you gave him, then the effect is it is as if you are the one personally doing the
acts. The agent is not liable.
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- Sec. 20. Liability of person signing as agent, and so forth- Where the instrument contains
or a person adds to his signature words indicating that he signs for or on behalf of a
principal or in a representative capacity, he is not liable on the instrument if he is duly
authorized; but the mere addition of words describing him as an agent, or as filing a
representative character, without disclosing the principal, does not exempt him from
personal liability.
- For an agent not to be liable, the following must concur:
a. He must be duly authorized
b. He adds the words to his signature describing himself as an agent
c. He discloses the name of the principal (Sec. 20).
d. He must be within the scope of his authority. (Art. 1881, CCP)
Example (authority) : As an agent, you can sign for the principal not more than 500,000
but you indorse something that is worth 1,000,000. Then you are liable as an agent
because you acted beyond your authority.
Example 2:
Pablo Patricio (Principal)
CONTINUATION OF EXECPTIONS
3. Procuration, concept:
“Procuration” means the act of appointing another as one’s agent or attorney.
NOTE:
- When you say attorney-in-fact, it is not necessary that he is a lawyer. However, if attorney-in
law it must be a lawyer.
- Sec. 21. Signature by procuration; effect of. A signature by “procuration’ operates as
notice that the agent has but a limited authority to sign, and the principal is bound only
in case the agent in so signing acted within the limits of his authority.
- If you say there per proc, then you name the agent. It means that the agent has a limited
capacity to sign, and that the principal is bound only in case the agent in so signing acted
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within the limits of his authority. The person assigning him as the agent will only be liable if
the agent acted within the actual limits of his authority.
Or
Sgd) Pablo Patricio
Per. Proc.: Angelo Alvarez
Or
(Sgd) Pablo Patricio
P.P. : Angelo Alvarez
NOTE:
- Pablo Patricio is telling the whole world that his agent Angelo Alvarez has limited capacity
to sign.
- P.P. or Per. Proc, or Per Procuration —> serves as a warning that the person signing has a
limited authority to sign
- The signature of a party made by a duly authorized agent who indicated that he signs for or
in behalf of a principal or in a representative capacity. However, the mere addition of
words without disclosing the principal does not exempt him from personal liability. A
signature by “procuration” operates as notice that the agent has limited liability to sign and
the principal shall only be bound if the agent acted within the actual limits of his authority.
- The agency requires no form unless the law provides otherwise.
NOTE:
- When there is acceptance in a separate instrument, if you are drawee, for example, and you
accepted in a separate instrument (which is called allonge) even if your signature does not
appear on the main instrument, because your acceptance is in another instrument, which is
part of the main instrument, you are still liable.
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5. When there is an unconditional promise in writing to accept a bill before it is drawn (Section
135, NIL).
NOTE:
- Before a drawer a prepares an instrument and here is another person accepting the
instrument before it is drawn or prepared in writing, then that person, even if he did not sign
the instrument as an acceptor, then he is liable.
- Section 135: Promise to accept; when equivalent to acceptance - An unconditional
promise in writing to accept a bill before it is drawn is deemed an actual acceptance in
favour of every person who, upon the faith thereof, receives the bill for value.
- Thus, even if a person did no sign on the bill itself, as long as he promise to accept before
the instrument drawn, he is still liable.
- NOTE THE WORD BEFORE. If the document is drawn after, then he will only be liable if
he signs it.
- Before the document is drawn, there is no document to sign. However the person may accept
the instrument by stating in writing the unconditional promise to accept the bill. - The idea
here is that, a bill of exchange is not yet drawn, hence he cannot sign it yet. Hence, he can put
it in writing (Sec 135) —> which is to be prepared by the drawer.
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- In this case, for exception number 6, since it is a bearer instrument, you do not know the
maker of the instrument. As a holder, you only know the immediate person who transferred
the document. Thus, the warranty is only to the immediate transferee.
7. Where the drawee destroys a bill or refuses within 24 hours to return the bill accepted or not
accepted.
NOTE:
- As a drawee, he will not be liable to the instrument if he does not accept or put his signature
in the document. If he signs the document, he becomes an acceptor thus, he will be held
liable.
- If the drawee destroy or fails to act within 24 hours on the document, he will be held liable
as an acceptor.
- Section 137. Liability of drawee returning or destroying bill. Where a drawee to whom
a bill is delivered for acceptance destroys the same, or refuses within 24 hours after
such delivery or within such other period as the holder may allow, to return the bill
accepted or non-accepted to the holder, he will be deemed to have accepted the same.
Example: my name is there in the instrument, and the forger sign the instrument. It appears
that my signature is there and not the forger’s. Even if he did not sign the instrument with his
own signature under a different name, he will be held liable.
NOTE:
- Here you are committing a crime hence you should be held liable even if you did not sign
using your own signature.
- Ang point lang here is “because you are a forger, even if your signature does not appear
in the instrument itself, you will be held liable”
- SEC. 23. Forged signature; effect of. – When a signature is forged or made without the
authority of the person whose signature it purports to be, it is wholly inoperative, and
no right to retain the instrument, or to give a discharge therefor, or to enforce
payment thereof against any party thereto, can be acquired through or under such
signature, unless the party against who it is sought to enforce such right is precluded
from setting up the forgery or want of authority.
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Q: What is the liability of the accommodation party?
A: He is liable to a holder for value regardless at the time of taking the instrument, knew him to be only
an accommodation party.
Example: I took an instrument for value and I knew that the maker of the PN is merely an
accommodation party.
Q: Can I make that person liable?
A: Yes, under section 29, regardless whether if I knew that he is an accommodation party
or not, he is still liable.
Rule: If your signature appears on the instrument, you are still liable even if you are
merely an accommodation party.
Q: What is forgery?
A: By forgery is meant the counterfeit (falsification) making or fraudulent alteration of any writing, and
may consist in the signing of another’s name, or the alteration of an instrument in the name, amount,
description, of the person and the like, with intent to defraud.
Example: If you change the name of the payee, or if you change the amount in the
instrument, or change the name of the agent, etc., with the intent to defraud, that is forgery.
(ITATANONG SA EXAM, MGA ULOPONG YUNG DEFINITION; MEMORIZE THIS)
NOTE:
- SEC. 23. Forged signature; effect of. – When a signature is forged or made without the
authority of the person whose signature it purports to be, it is wholly inoperative, and no right
to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against
any party thereto, can be acquired through or under such signature, unless the party against
who it is sought to enforce such right is precluded from setting up the forgery or want of
authority.
- The exception to Sec. 23 is Estoppel. Upon knowing that his signature is forged and did not contest
it, that person is precluded from setting up forgery.
- The rule on forgery under Section 23 applies only to a signature that is forged or made without
authority of the person whose signature it purports to be.
- Different rule will apply if the person changes the amount, name, etc of the document. - The forger,
in cases of forgery, who forges the signature of another person is liable on the instrument even if his
actual signature does not appear thereon as the law provides that when a signature is forged or made
without authority of the person whose signature it purports to be, it is wholly inoperative, and no right
to retain the instrument or give discharge therefore, or to enforce payment thereof against any party
thereto, can be acquired through or under such signature, unless the party against whom it is sought to
be enforced is precluded from setting up forgery or want of authority.
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Q:What are the effects of forgery?
Answer:
a) The instrument is not declared totally void nor are the genuine signatures thereon rendered
inoperative. It is only the forged signature that is declared inoperative. It is only the forged
signature that is declared inoperative. Hence: rights still exist and may be enforced by virtue of
the instrument as between parties whose signatures were not forged, and
NOTE: The entire instrument is not void. It is only the forged instrument
b) A forged instrument just prevents any subsequent party from acquiring any rights as against
any party whose name appears prior to the forgery. There is no right to retain the
instrument, or to give discharge or to enforce as between subsequent parties but no one can
acquire a right as against parties prior to the forgery, who also have rights and may enforce
them as against each other.
NOTE:
- At this point, all the people after the forgery will not have a right against those people who
had the instrument before the forgery.
- Those parties prior to the forgery are excluded from liability. Prior parties may not be liable
to the instrument.
Example: My name as the maker was forged, up to that point you cannot make me liable.
(may example sa page 70, look at the note)
The exception to the effects is when a party against who the instrument is being enforced is precluded
from setting up forgery (as a defense).
a. Those who by their acts, silence and inaction or negligence are estopped from setting up the
defense of forgery.
b. Those who warrant or admit the genuineness of the signature in question as follows: 1. The
acceptor, who admits, among other matters, the genuineness of the signature of the drawer.
(Sec. 62)
2. The indorsers, who warrant, among other matters that the instrument is genuine and in all
respects what it purports to be. (Sec 65 and 66)
3. Those negotiating by mere delivery, who warrant, among other matters, that the instrument
is genuine and in all respects what it purports to be. (Sec. 65).
ILLUSTRATION:
a) The indorsers of instrument payable to order.
As when: A maker executed a promissory note payable to the order of B (payee). B lost the note. X
Found it, signed the name of B and negotiated the instrument to C, then C to D, and D to E, holder.
A (Maker of PN) —> B(PAYEE and lost the note) —> X(found the note and signed the name of
B) —> C —> D —> E (Holder).
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**When it comes to indorsement, usually the payee named therein is the first indorser, kasi
maidedeliver sakanya. If I am going to make a promissory note in your favor, I will name you as the
payee, I will deliver it to you, since you will be the one to collect payment if you do not negotiate it.
Hence, if you negotiate it you will be the first indorser.
NOTE:
- E can go against D, C and X, the forger. They are precluded from putting up the defense of forgery
because as general indorsers they warrant that the instrument is genuine and in all respects
what it purports to be and that the instrument is valid and subsisting. X is deemed to have signed
in an assumed name and therefore, has the same warranties as a general indorser.
- X is committing a crime hence, he is liable — X is the forger, should not be excused from liability
because that is injustice. The person committing the crime first and foremost should be liable - X as
a forger can be still held liable even his signature is not there as mentioned in the exceptions above.
- However, E cannot go against B because B neither signed the instrument, nor authorized X
to sign for him. (B is a prior party to forgery, “all those party prior to the forgery is exempt
from liability”)
- So, also E cannot go against A, maker, because the forged signature of B is wholly inoperative
and did not validly transfer title over the instrument to C. Thus, insofar as A concerned, what
C acquired are only the rights of a forger which was transferred to D and hence E, holder.
Therefore, E has no right to retain the instrument or to enforce payment thereof as against A.
- A and B are prior parties to the forgery and thus, they are precluded from liability on the
instrument. (please see effect of forgery)
IN cases of this nature, the “cut-off formula” may be used to determine the liability of parties to
the holder of the instrument.
A(maker) — >B ( Payee and signature was forged) — > X (FORGERY and CUT-OFF) —> C —
> D —> E (Holder)
NOTE:
- By virture of the cut-off formula, all parties prior to the forgery has no liability thus, A and B
has no liability and the holder cannot go against them. C and D can be held liable (Sec. 65) - The
“cut-off” is at the point where the forgery occurred. All those above the cut-off cannot be
held liable by the holder. All those below the cut-off are liable to the holder.
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[October 6, 2020 — EPISODE 17]
GENERAL RULE ON SIGNATURE: No person can held liable on the instrument if his signature
does not appear thereon. Even if your name is there but you did not sign the document, you will not be
held liable.
NOTE:
- Sec 23 talks only about forged signature as to other alterations on the day, amount,
name, is separate.
- SEC 23: When a signature is forged or made without the authority of the person
whose signature it purports to be, it is wholly inoperative, and no right to retain
the instrument, or to give a discharge therefor, or to enforce payment thereof
against any party thereto, can be acquired through or under such signature,
[EXCEPTION] unless the party against whom it is sought to enforce such right is
precluded from setting up the forgery or want of authority.
- From the time there is forgery, that is the time you implement the cut-off. All the
parties that came after the cut-off, will be held liable as regards the holder. And
those parties above the cut off will not be held liable. (take note the cut off method is
not a legal basis —> wag mong isagot sa exam!! ahahhaha —> use the provisions of law
daw)
Example: X (forger) executed a bill of exchange by signing the name of Y as drawer, making
himself (X) as payee of the instrument and addressed the bill to Z as drawee. Then X (forger
payee) negotiated the bill to A who presents the instrument to Z for acceptance. Z accepts and
signs the bill as acceptor.
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Q: What is the effect of Z’s Acceptance?
A: Z cannot later on refuse to pay the bill by putting up the defense of forgery of the
signature drawer as he is precluded from putting up the defense of forgery as by his
acceptance, Z warrants the genuineness of the signature of the drawer.
CIVIL LAW: The liability of a person as regards estoppel (relate) —> once you made the
representation or declaration to an innocent 3rd person, later on you can no longer deny such
declaration.
Example: As when X (forger) executed a promissory note by signing the name of Y as maker,
making himself (X) as payee of the instrument. Then X (forger-payee) negotiates the note to
A; but before accepting the note, A asks Y if everything is in order with the note to which Y
says: “Yes, that’s okay” (there is an admission).
NOTE:
- Aside from these there could be alterations but they are not material
- If it is not material alterations it will not have any effect to the instrument - Sec 124:
Where a negotiable instrument is materially altered without the assent of all parties
liable thereon, it is avoided, except as against a party who has himself made,
authorized, or assented to the alteration and subsequent indorsers. (same
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principle with cut-off as discussed in forgery) But, when an instrument has been
materially altered and is in the hands of a holder in due course, not a party to the
alteration, he may enforce payment thereof according to its original tenor.
Example: A issued a promissory note in the amount of Php. 10,000 payable to the order of B,
payee. B negotiated to C who convinced B that he be allowed to change the amount of Php.
40,000 so he can pay his debts to D. Thereafter, C negotiated to D; D to E, the holder.
Q: Can E go against D?
A: Yes, because D is a subsequent indorser. As such D warrants that the instrument is
what it purports to be and that it is valid and subsisting. Hence, D is estopped from
denying the validity of the instrument.
Q: Can E go against C?
A: Yes, because C was the one who altered the instrument and also because of his
warranties as a general indorser.
Q: Can E go against B?
A: Yes, because B assented to the alteration; and also because of his warranties (he is
a payee and an indorser).
Q: Can E go against A?
A: It depends on whether E is a holder in due course or not. If E is not a holder in
due course, the instrument is avoided to him. Hence, E cannot go against A.
However, E is a holder in due course, E may enforce the instrument according to its
original tenor. Hence, E may go against A but only for Php. 10,000, the original tenor
of the instrument. (Apply 124)
NOTE: E can only go against A as to the original tenor and NOT on the altered one. This is to
safeguard innocent parties.
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NOTE: In order for you to be considered a holder in due course you must comply with
COGI
Example: A is the drawer and B is the payee. Suppose the instrument is a bill of exchange and
the bill is addressed to X as a drawee.
Q: Is X, drawee liable?
A: No, because X as drawee is not a party to the instrument until he accepts. Note: You
will not be liable if you are a drawee, unless you accepts and signs the instrument.
Then you will be an acceptor.
Suppose X, accepts, and as it passes along there is an alteration from 10,000 it becomes
40,000 Q: Is X as acceptor liable? If so for how much? If not, why not?
A: Yes, he is liable, because by accepting the instrument you are accepting that the
drawer is existing and the signature is genuine.
Note: The second view is a better view. The second example is different from the
first example; it is a bill of exchange, hindi siya yung gumawa inaccept niya lang so
parang may estoppel in the acceptor’s part kasi in the first place if you accept aware ka sa
laman nung instrument dapat.
Spoliation: When the material alteration of the instrument is made by a stranger (he is not a
party to the instrument — saw saw de jk).
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Q: What is the meaning of the Shelter Rule?
A: 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.
Note: Any changes here will change the original tenor or content of the instrument, but the
law zeroes in on material alteration.
Example: Wrong grammar. It may change the content of the instrument but it is not a
material alteration. Enumeration of Section 125 tells us what changes is material
alteration. Other alteration not included in Section 125 is not material. Thus, the
law of NIL will not apply to those alteration.
RULE: Where a negotiable instrument is materially altered without the assent of all parties
liable thereon, it is avoided, except as against a party who has himself made, authorized, or
assented to the alteration and subsequent indorsers.
NOTE:
- Similar with the “cut-off limit” subsequent indorsers are liable (Warranty). - It is
avoided except to those who altered the instrument or consented to the material
alteration; after cut-off they are still liable.
- Example 1: You put in the instrument the amount different from that intended —> it is
avoided; except to the person who authorized, assented the alteration —> as well as
subsequent indorsers.
- Take note of warranties of indorsers. It will still apply to material alteration.
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- Example 2: The sum payable is 100K, X altered the instrument and the amount became
1M, then X indorsed it to Y (subsequent indorser), Y is now liable to 1M.
But when an instrument has been materially altered and is in the hands of a holder in due
course, not a party to the alteration, he may enforce payment thereof according to its
original tenor (Section 124)
NOTE:
- It is avoided to prior party, BUT even if you are a prior party, prior to the
alteration, when the holder is a holder in due course he may still enforce the
instrument to its original tenor.
- Example: I am the maker and X (indorser) altered the amount of the instrument. If a
holder in due course comes to me with the altered instrument. How shall I pay? If the
person is a holder in due course, then the maker is only liable for the original tenor. I
promised to pay 100K I can only pay you this amount (example: original amount
100,000 pero dinagdagan ng tatlong zero, naging 1M, 100,000 lang pwede singilin.)
However, if the person is not a holder in due course, it can be avoided
- Sec. 124. Alteration of instrument; effect of. – Where a negotiable instrument is
materially altered without the assent of all parties liable thereon, it is avoided,
except as against a party who has himself made, authorized, or assented to the
alteration and subsequent indorsers. But when an instrument has been
materially altered and is in the hands of a holder in due course, not a party to
the alteration, he may enforce payment thereof according to its original tenor
NOTE: A holder in due course received the document with the enumerations above.
(WALANG MALI SA DOCUMENT). Take note of this because liability of holder will differ
depending whether he is a holder in due course or not.
Example: Same example above but the instrument is a bill of exchange. Add another party,
X as drawee.
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Q1: Is X drawee, liable?
A: No, because X as drawee is not a party to the instrument until he accepts. (Even
his name is indicated in the instrument but he did not sign or accepts it, he is not
liable.)
Note: No one is liable to the instrument unless he/she affixed his/her signature
Q2: Suppose X accepts, is X as acceptor liable? If so, for how much? If not, why
not?
A: There are two schools of thought in this regard.
First view maintains that the acceptor X is liable only according to the
original tenor of the instrument which, in this case is P10,000.00
Second view asserts that the acceptor is liable according to the tenor of his
acceptance.
Thus, if X accepted prior to the alteration of the instrument, he would be liable
only for P10,000.00 because that is the tenor of his acceptance. However, if X
accepted after the alteration of the instrument, he would be liable for P40,000.00
because that is the tenor of his acceptance.
The second view is the better view. (Both views are correct but the second view
is better. Take note how much you accepted and that is the amount that you
would be liable to).
SEC. 58. When subject to original defenses.— 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.
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NOTE: For checks, we have spoiled checks; you are given a maximum of 6 months to
en-chash the checks
READ DE OCAMPO VS. GATCHALIAN 03 SCRA 596
YANG vs CA G.R. no . 138074
(ISSUES DITO IS WHETHER HOLDER IN DUE COURSE SILA)
Lalabas sa quiz or exam iyong case.
Example: If I deliver an instrument which is incomplete, the amount was not stated; the
payee has a prima facie authority to complete it by filing up the blanks therein.
Note: It is “prima facie”, it is not conclusive. I can provide evidence that he (payee)
is not authorized to complete the instrument.
Note:
- If it is given to you, it is presumed that you were given the prima facie authority
to fill in the document and to complete it for it to become a negotiable
instrument.
- However, there are 2 conditions: a) It must be strictly in accordance to the
authority given; and b) within reasonable time (what is reasonable is dependent on
the usage and circumstances).
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