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NEGOTIABLE

INSTRUMENTS
(ACT NO. 2031)
FUNCTION and IMPORTANCE OF
NEGOTIABLE INSTRUMENTS
1. Substitute for money
2. The media of exchange for most commercial transactions
- They do away with the need to physically count coins and bills whenever
payment is made in financial transactions and obligations. They are a safe and
convenient means of doing business that eliminate the risk of dealing in cash.
3. Medium of credit transaction
CHARACTERISTICS OR FEATURES OF
NEGOTIABLE INSTRUMENTS
1. Negotiability
2. Accumulation of secondary contracts as they
transferred from one person to another
FORMS OF NEGOTIABLE
INSTRUMENTS
1. Promissory notes or those in which the issuer has promised to
pay; and
2. Bills of exchange or those in which the issuer has ordered a third
person to pay

* Checks are also discussed in the law but they are really a special form or kind
of exchange
Section 1. Form of negotiable
instruments
An instrument to be negotiable must conform to the following requirements:
a. It must be in writing and signed by the maker or drawer;
b. Must contain and unconditional promise or order to pay a sum certain in
money;
c. Must be payable on demand or at a fixed or determinable future time;
d. Must be payable to order or bearer; and
e. Where the instrument is addressed to a drawee, he must be named or
otherwise indicated therein with reasonable certainty.
FORMAL REQUIREMENTS OF
NEGOTIABILITY IN GENERAL
In determining the negotiability of an instrument, the following must
be considered:
1. The whole of the instrument;
2. Only what appears on the face of the instrument; and
3. The provisions of the Negotiable Instruments Law especially
Section 1thereof which fully define the requirements an instrument
must meet in order to be negotiable.
APPLICABILITY OF FORMAL
REQUIREMENTS
Promissory Note
- a to d are necessary in order that a promissory note may be negotiable
- the maker refers to the person issuing a promissory note
- the instrument must contain an unconditional promise

Bill of Exchange
- a to e are necessary in order that a bill of exchange may be negotiable
- the drawer refers to the person issuing a bill of exchange
- the instrument must contain an unconditional order
- subsection e is applicable only to bills of exchange
FORMAL REQUISITES
1. The instrument must be in writing
2. The instrument must be signed by the maker or drawer
3. The instrument must contain an unconditional promise or order to pay
4. The instrument must be payable in a sum certain in money
5. The instrument must be payable at a fixed determinable future time or on
demand
6. The instrument must be payable to order
7. The instrument must be payable to bearer
8. The drawee must be named
The Drawee must be named
- An order which is not addressed to any person cannot be a bill. But
the bill would be sufficient if the drawee is indicated therein with
reasonable certainty though he is not named. Thus, where a bill is
addressed to the treasurer of a corporation, the drawee is
sufficiently indicated. (Sections 128, 129, 17e)
- A promissory note has no drawee. Like the drawee, the payee must
be named with reasonable certainty. (Sec 8 p2)
Original Parties to a Promissory Note
1. There are originally TWO PARTIES in a promissory note

MAKER one who makes the promise and signs the instrument
PAYEE one whom the promise is made or the instrument is payable

2. The payee may be specifically designated by name, or office or title (e.g.


Treasurer of X Corporation), or may be unspecified (e.g. bearer)

3. He may seek payment personally or further negotiate the instrument. Thus,


the maker promises to pay to the payee or to a holder.

4. The makers signature must appear on the face of the note for him to be
liable thereon. After an instrument promissory note or bill of exchange is
issued and delivered, additional parties can also become involved.
Bill of Exchange
- A negotiable bill of exchange is an unconditional order in
writing addressed by one person to another, signed by the
person giving it, and 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.
If drawn on a bank and payable on demand, the order bill is by
definition called check.
Original Parties to a Bill of Exchange
1. DRAWER the person who issues and draws the order bill. He gives the order to pay money
to a third party. He does not pay directly.
2. DRAWEE the party upon whom the bill is drawn. He is the person to whom the bill is
addressed and who is ordered and expected to pay. He becomes the ACCEPTOR when he
indicates his willingness to pay the bill. The drawee is a bank in the case of a check.
3. PAYEE the party in whose favor the bill is originally issued or is payable. The payee, like in
the promissory note, may be specifically designated, or may be an office or title, or unspecified.
NOTE: The parties need not all be distinct persons. The drawer may draw on himself payable to
his own order, that is, the parties to the bill can be the same (drawer-drawee or drawer-payee)
Section 2. Certainty as to Sum; what
constitutes
The sum payable is a sum certain within the meaning of this Act, although it is to
be paid
(a) With interest; or
(b) By stated installments; or
(c) By stated installments with a provision that upon default in payment of any
installment or of interest, the whole shall become due; or
(d) With exchange, whether at a fixed rate or at the current rate; or
(e) With costs of collection or an attorneys fee, in case payment shall not be
made at maturity
NOTE: If the instrument calls for an act, other than the payment of
money, it is not negotiable because a negotiable instrument is
intended as a substitute for money.
PERMISSIBLE CLAUSES or STIPULATIONS
The sum is not rendered uncertain by a clause in the instrument
that it is to be paid with interest, by stated installments, with
exchange, with costs of collection, or with attorneys fees.
Neither is the certainty of the sum affected by an acceleration
provision in an installment note. The basic test is whether the holder
can determine by calculation or computation the amount payable
when the instrument is due. But a promissory note giving the maker
the right to ascertain the amount rightly thereunder is non-
negotiable.
INTEREST AT INCREASED OR REDUCED RATE
- The provision for increased interest rate if the note is not paid at
maturity (Citizens Savings Bank vs. Lantis, 132 December 1101), or
for a reduced rate if payment is made at or before maturity (Union
Nat. Bk. Vs. Mayfield, 174 Pac. 1034), or for payment of interest on
interest, does not destroy negotiability.
SUM TO BE PAID BY INSTALLEMENTS
- The promise or order to pay by stated installments does not effect
negotiability
SUM TO BE PAD BY STATED INSTALLMENTS WITH ACCELERATION CLAUSE
1. Acceleration dependent on maker The sum is still certain although
payable by stated installments with an acceleration clause (a promise that if
any installment or interest is not paid as agreed, the whole shall become
due). Such a clause requires full payment of an instrument upon default on
any installment. It does not make an instrument payable upon contingency
(and so non-negotiable) since the time of payment will surely come.
2. Acceleration at option of holder If a note provides for acceleration at the
option of the holder, the instrument is non-negotiable as where the clause
(first par.) in the above example instead provides: or the whole amount plus
interest on 08 January 2016 at the option of the holder.
PAYMENT IN FOREIGN CURRENCY
- A provision for payment of a sum in a foreign currency does not
impair negotiability because the current rate of exchange at any
given time may be easily ascertained by an inquiry from the banks
dealing on exchange or foreign currencies and such rate is a matter
of common commercial knowledge. An instrument, whether payable
at a fixed exchange rate or at the current rate is deemed by law to
meet the sum certain requirement.
SUM TO BE PAID WITH COSTS OF COLLECTION OR AN ATTORNEYS
FEE
- A provision to pay all costs, charges and expenses including
attorneys fee incurred by the payee in any legal proceedings for the
collection of the debt renders the instrument non-negotiable.
Section 3. When promise is
unconditional:
An unqualified order or promise to pay is unconditional within the meaning of
this Act though coupled with
(a) An indication of a particular fund out of which reimbursement is to be made
or a particular account to be debited with the amount; or
(b) A statement of the transaction which gives rise to the instrument.
But an order or promise to pay out of a particular fund is not unconditional.
IMPLIED PROMISE TO PAY
I agree to pay. Good for
I guaranty to pay. due on demand
M obliges to pay.
BARE ACKNOWLEDGMENT OF INDEBTEDNESS
IOU
due PhP 5,000.00
for value received
* Non-negotiable

IF WORDS OF NEGOTIABILITY ARE ADDED


due D or order IOU PhP 5,000.00 to be pad on January 10,
2016
due M or bearer
When promise to pay is unconditional
* An instrument is not negotiable if it contains a promise or order to pay:
if H marries
if certain property is sold
if after a year I am still living
out of the rent which may be collected from my apartment
* Even if the condition or event is very likely to occur, or indeed, even if it, in
fact, did occur subsequently, the instrument remains non-negotiable, although it
would, of course, become payable at that time.
Terms not affecting unconditional
liability
- Additional terms appearing on an instrument (e.g. statement of the purpose for
which the instrument is issued, the collateral securing it, the consideration received
in exchange for the instrument, e.g. goods purchased).
do not make the promise or order unconditional if the duty to pay is unaffected
by such terms
Indication of a particular fund out of which reimbursement is to be made
- An instrument which mentions a particular fund out of which reimbursement is to
be made is negotiable because the order to pay is not rendered conditional. The
drawee is not limited to the money in his hands belonging to the drawee.
- The fund indicated is not the direct source of payment but only the source of
reimbursement which is an act subsequent to the payment
Indication of a particular fund out of which payment
is to be made
- An instrument payable out of a particular or specified fund is non-negotiable
because the amount to be paid is made to depend upon the adequacy or existence
of the fund designated. The fund specified is the direct source of payment and the
measure of liability. It is immaterial whether or not the fund actually exists or is yet
to be created. The instrument remains non-negotiable even if the fund is found to
be sufficient at maturity.

Indication of a particular account to be debited with


the amount
- An instrument which contains a direction to debit a particular account is negotiable
because the promise/order is not also made conditional. The payment does not
depend upon the existence or adequacy or the particular account to be debited.
Statement of transaction which gives rise
to instrument
- Mere recital of consideration for instrument or origin of transaction
does not make it conditional. Such kind of reference has no adverse
legal effect on the negotiability of the instrument

Terms and conditions contained in another


paper
- The negotiability or non-negotiability of the instrument must be
determinable from what appears on its face alone and not
elsewhere.
Section 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
(c) On or at a fixed period after the occurrence of a specified event which is
certain to happen, though the time of happening be uncertain.
An instrument payable upon contingency is not negotiable, and the happening
of the event does not cure the defect.
- A negotiable instrument must be payable at all events.
1. Payable at a fixed time
I promise to pay P or order the sum of PhP 5,000.00 on January 10,
2016.
2. Payable at a fixed period after date
Thirty days after date, I promise to pay P or order the sum of PhP
8,000.00.
3. Payable at a fixed period after sight
Thirty days after sight, I promise to pay P or order the sum of PhP
8,000.00.
4. Payable on or before a fixed date
On or before February 3, 2016, I promise to pay A or order PhP
3,000.00.
5. Payable on or before a determinable future time
On or before the start of the next school semester, I promise to pay M or order
PhP 5,000.00.
6. Payable on the occurrence of a specified event
I promise to pay M or order the sum of PhP 5,000.00 upon the death of his
father.
7. Payable after the occurrence of a specified event
Ten days after the death of his father, I promise to pay M or order the sum of
PhP 7,000.00.
Note: But a bill or note payable several days before the occurrence of the
specified event is not negotiable, since the date of maturity of the instrument
can only be ascertained after it has become overdue and therefore, the time for
payment is uncertain. Moreover, the law says on or at a fixed period after and
not before.
8. Payable upon a contingency
Pay to the order of P the sum of PhP 9,000.00 upon his
reaching the age of majority.
- The bill is non-negotiable because the order is conditional. P
may die before reaching the age of majority in which case the
bill will never mature. It makes no difference that P reaches the
age of maturity because the contingent event does not cure the
defect.
- A contingency is an uncertain future event, or an event which
may or may not happen.
Section 5. Additional provisions not
affecting negotiability
An instrument which contains an order or promise to do any act in addition to the
payment of money is not negotiable. But the negotiable character of an instrument
otherwise negotiable is not affected by a provision which
(a) Authorizes the sale of collateral securities in case the instrument be not paid at
maturity; or
(b) Authorizes a confession of judgment if the instrument be not paid at maturity; or
(c) Waives the benefit of any law intended for the advantage or protection of the
obligor; or
(d) Gives the holder an election to require something to be done in lieu of payment of
money.
But nothing in this section shall validate any provision or stipulation otherwise illegal.
GENERAL RULE: The instrument is non-negotiable if it contains a promise or order to
do any act in addition to the payment of money. The prohibition is based on the fact
that while one could be indorsed, the other would have to be assigned.
Examples:
I promise to pay M or order phP 5,000.00 and (or) to deliver 20 boxes of sardines.
NON-NEGOTIABLE
(a) and to pay for taxes assessed upon the note or its mortgage security. (Hubard vs.
Robert Wallace Co., 201 1a. 1143, 208 N.W. 730)
(b) and to keep free from encumbrance property on which the value of collateral
pledged for security of the instrument depends. (Streckload vs. national Salt Co., 8T Alt.
828)
(c) and a promise to insure the property pledged as security. (First State Savings Bank
vs. Russel, 224 Mich. 298, 221 N.W.142)
EXCEPTIONS:
(a) Sale of collateral securities
I promise to pay M or order the sum of PhP 7,000.00 on February 10, 2016 secured by a necklace I
delivered to her by way of pledge and which she could sell should I fail to pay her at maturity.
* The additional act is to be performed after the date of maturity when the instrument is no longer
negotiable in the full commercial sense. Until the date of maturity, the promise is to pay money
only.
(b) Confession of judgment
* Warrants of attorney to confess judgment, however, are not authorized not contemplated by our
law because under these instruments, the promissor bargains away his right to a day in court. The
second paragraph of Section 5 contains a proviso or stipulation otherwise illegal. But the invalidity
of the provision as to the confession of judgment does not render the instrument non-negotiable. A
confession of judgment given after the action is brought to save expenses is valid.
(c) Waiver of benefit granted by law
Pay bearer PhP 20,000.00. Notice of dishonor waived.
* Neither does waiver of protest, presentment for payment, or
demand, destroy the negotiability of an instrument.
(d) Election of holder to require some other act.
I promise to pay F or order PhP 50,000.00 or a laptop at the option
of the holder.
* The holder has a choice. The instrument is negotiable because the
holder cannot compel him to make payment in money. If the option
is with the promissor, the instrument is non-negotiable because the
holder cannot compel him to make payment in money. Thus:
I promise to pay F or order PhP 50,000.00 or a laptop.= NON-
NEGOTIABLE
Section 6. Omissions; seal; particular money. The
validity and negotiable character of an instrument
are not affected by the fact that -
(a) It is not dated; or
(b) Does not specify the value given, or that any value has been given therefor;
or
(c) Does not specify the place where it is drawn or the place where it is drawn or
the place where it is payable; or
(d) Bears a seal; or
(e) Designates a particular kind of current money in which payment is to be
made.
But nothing in this section shall alter or repeal any statute requiring in certain
cases the nature of the consideration to be stated in the instrument.
GENERAL RULE: Date is not necessary.
EXCEPTIONS: Date is necessary when it is to determine the date of
maturity.
(a) where said date is tied to the date of issue payable thirty days
after date of issue.
(b) where interest is stipulated for the purpose of determining when
the interest is to run.
(c) in the case of promissory mote, the date of issue, and in the case
of the bill of exchange, the date of the last negotiation thereof, for
the purpose of determining whether a party acted within a
reasonable time in making presentment for payment.
Section 7. When payable on demand. An
instrument is payable on demand
(a) Where it is expressed to be payable on demand, or at sight, or on presentation; or
(b) In which no time for payment is expressed.
Where an instrument is issued, accepted, or indorsed when overdue, it is, as regards the person
so issuing, accepting, or indorsing it, payable on demand.
* Instruments that are not payable on demand, called time instruments, are payable at a
definite time.
* Instead of on demand, the words at sight or on presentation or on call or at any
time called for may be used.
* The words on demand are ordinarily used in promissory notes while the words at sight in
bills of exchange.
* At sight means that the instrument is payable as soon as it is seen by the party primarily
liable.
Section 8. When payable to order. The instrument is payable
to order where it is drawn payable to the order of a specified
person or to him or his order. It may be drawn payable to the
order of:
(a) A payee who is not maker, drawer, or drawee; or
(b) The drawer or maker; or
(c) The drawee; or
(d) Two or more payees jointly; or
(e) One or more of several payees; or
(f) The holder of an office for the time being.
Where the instrument is payable to order, the payee must be named
or otherwise indicated therein with reasonable certainty.
An instrument is payable to order where it is drawn payable: (1) to
the order of a specified person; (2) to him or his order. Consequently,
an instrument payable to a specified person is not an order
instrument and, therefore, is non-negotiable as the promise or order
is limited to paying one person.

Pay to the order of PhP 10,000.00.


Pay to M or order PhP 10,000.00.
Section 9. When payable to bearer. The
instrument is payable to bearer-
(a) When it is expressed to be so payable; or
(b) When it is payable to a person named therein or bearer; or
(c) When it is payable to the order of a fictitious or non-existing
person, and such fact was known to the person making it so payable;
or
(d) When the name of the payee does not purport to be the name of
any person; or
(e) when the only last indorsement is an indorsement in blank.
EXAMPLES
1. Expressed to be payable to bearer
I promise to pay to bearer PhP 8,000.00.
I promise to pay to the bearer, B, PhP 8,000.00. non-negotiable (it is
payable to a definite person only.
2. Payable to person named therein or bearer.
Pay to B or bearer PhP 8,000.00.
Pay to B or holder PhP 8,000.00.
3. Payable to order of a fictitious person.
Pay to Alice in Wonderland or order PhP 5,000.00.
4. Payable to order of a non-existing person.
Pay to the order of the Queen of the Milky Way.
5. Name of payee not name of a person
Pay to cash. Pay to money.
Pay to cash or order. Pay to sundries.
6. Only indorsement in blank
Pay to P or order PhP 8,000.00.

(Sgd.) R
To W
Manila

(Sgd.) P
7. Last indorsement in blank

Pay to A
(Sgd.) P

Pay to B
(Sgd.) A
(Sgd.) B
Section 10. Terms, when sufficient. The instrument need not
follow the language of this Act, but any terms are sufficient
which clearly indicate an intention to conform to the
requirements hereof.
* Clear intention of the parties
promise - bind myself
on demand on call
bearer holder
* Mere defect in language or grammatical error This does not
render an instrument non-negotiable. Thus, the words himself
order may be construed as himself or order
Section 11. Date, presumption as to Where the instrument or an acceptance
or any indorsement 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.
* He who claims that some other date is the true date has the burden to establish such
claim.
Section 12. Ante-dated and post-dated. The instrument is not invalid for the reason only
that it is ante-dated or post-dated, provided this is not done for an illegal or fraudulent
purpose. The person to whom an instrument so dated is delivered acquires the title thereto
as of the date of delivery.
Section 13. When date may be inserted. Where an instrument expressed to be payable at
a fixed period after date is issued undated, or where the acceptance of an instrument
payable at a fixed period after sight is undated, any holder may insert therein the true date
of issue or acceptance, and the instrument shall be payable accordingly. The insertion of a
wrong date does not avoid the instrument in the hands of a subsequent holder in due
course; but as to him the date so inserted is to be regarded as the true date.
When date may be inserted
(a) Where an instrument is payable at a fixed period after date but is issued undated; and
(b) Where an instrument is payable at a fixed period after sight but the acceptance is undated.
* Date of issue or acceptance to be specified Any holder may insert therein the true date of
issue or acceptance and the instrument shall be payable accordingly. It is necessary that the date
of issue or acceptance, as the case may be, be specified so as to determine the date of maturity.
The reason is that unless the true date is inserted, one will not know when the instrument will
be due.

Insertion of a wrong date


1. As to holder with knowledge. The insertion of a wrong date in an undated instrument by
one having knowledge of the true date of issue or acceptance will avoid the instrument as to
him but not as to a subsequent holder in due course who may enforce the same
notwithstanding the improper date.
2. As to subsequent holder in due course The insertion of a wrong date constitutes a material
alteration. Nevertheless, in the hands of a holder in due course, the date inserted, even if
wrong, is to be regarded as the true date.
Sec. 17. Construction where instrument is ambiguous. - Where the language of the instrument is
ambiguous or there are omissions therein, the following rules of construction apply
(a) Where the sum payable is expressed in words and also in figures and there is a discrepancy between
the two, the sum denoted by the words is the sum payable; but if the words are ambiguous or uncertain,
reference may be had to the figures to fix the amount;

(b) Where the instrument provides for the payment of interest, without specifying the date from which
interest is to run, the interest runs from the date of the instrument, and if the instrument is undated,
from the issue thereof;

(c) Where the instrument is not dated, it will be considered to be dated as of the time it was issued;

(d) Where there is a conflict between the written and printed provisions of the instrument, the written
provisions prevail;

(e) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may
treat it as either at his election;

(f) Where a signature is so placed upon the instrument that it is not clear in what capacity the person
making the same intended to sign, he is to be deemed an indorser;

(g) Where an instrument containing the word "I promise to pay" is signed by two or more persons, they
are deemed to be jointly and severally liable thereon.
Rules on construction in case of ambiguity
or omission
1. Sums expressed in words and in figures different When there is a discrepancy between the
sum expressed in words and the sum expressed in figures, the former controls.
2. Words ambiguous or uncertain Words outweigh figures. However, when the words are
ambiguous or uncertain, reference may be had to the figures to determine the true amount.
3. Date when stipulated interest to run not specified If the date when the stipulated interest
is to run is not specified, the interest runs from the date of the instrument or if undated from the
date of its issue.
4. Instrument undated An undated instrument is considered dated as of the date of its issue.
Issue means the first delivery of the instrument complete in form, to a person who takes it
as holder. The date appearing in the instrument is deemed prima facie the true date of its issue,
acceptance, or indorsement.
5. Written and printed words in conflict In case of conflict between the written and printed
provisions, the former prevail.
* The reason for the rule is that the written words are deemed to express the true intention of
the maker or drawer because they are placed there by himself. On the other hand, printed forms
are prepared without any particular contract in view.
6. Whether instrument bill or note in doubt In case of doubt as to whether an instrument is a
bill or note, the holder may treat either at his election.

I promise to pay P or order PhP 8,000.00


(Sgd) R

To W

The instrument is ambiguous. The promise to pay indicates that it is a promissory note.
However, it is addressed to W which indicates that it is a bill of exchange. In this case, P may
treat the instrument either as a bill or note at his discretion.
7. Capacity in which person signed in doubt In case of doubt in
what capacity the person making the instrument intended to sign, he
is to be deemed an indorser.
* The signature of the maker of a note or the drawer of a bill is
usually affixed at the lower right-hand corner of the instrument. The
drawers name is usually placed on the lower left-hand corner. The
holder negotiates the instrument by signing on the back thereof.
* Section 17(f) applies only when there is doubt due to the
ambiguous location of the signature. In such case, the party who
signs is considered as an indorser who assumes the least liability, and
not as maker or drawer.
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.

Sec. 19. Signature by agent; authority; how shown - The signature


of any party may be made by a duly authorized agent. No
particular form of appointment is necessary for this purpose; and
the authority of the agent may be established as in other cases of
agency.
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 was duly authorized; but the mere
addition of words describing him as an agent, or as filling a
representative character, without disclosing his principal,
does not exempt him from personal liability.
When agent may escape personal liability
In order that an agent who signs a negotiable instrument may escape personal liability, the
following are the requisites:
(1) He is duly authorized;
(2) He adds words to his signature indicating that he signs as an agent, that is, for or on behalf of
a principal, or in a representative capacity; and
(3) He discloses his principal.

Use of descriptive words without disclosure of principal


The mere addition of descriptive words without disclosing the principal will not relieve the
signer from personal liability. Therefore, one who signs an instrument in a representative
capacity but without disclosing his principal will still be personally liable although he adds to his
signature the word agent or trustee or administrator or guardian or director, etc.