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Lecture 9 (Part II Payment Concerning Int'l Sale of Goods 1)

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Lecture 9 (Part II Payment Concerning Int'l Sale of Goods 1)nullLaw of International Trade of GoodsLaw of International Trade of GoodsInternational Sales of Goods Transportation Concerning International Sales of Goods Insurance Concerning International Sales of Goods Payment Concerning International Sales of GoodsPayment Con...
Lecture 9 (Part II Payment Concerning Int'l Sale of Goods 1)
nullLaw of International Trade of GoodsLaw of International Trade of GoodsInternational Sales of Goods Transportation Concerning International Sales of Goods Insurance Concerning International Sales of Goods Payment Concerning International Sales of GoodsPayment Concerning International Sales of GoodsPayment Concerning International Sales of GoodsInstruments of payment (支付工具) Methods of payment (支付方式) E-banking serviceNegotiable Instruments (票据)Negotiable Instruments (票据)Concept Parties Characteristics Types Acts involving Negotiable Instruments Laws on Negotiable InstrumentsConceptConceptA written certificate containing an unconditional order by the drawer (出票人) that directs a drawee (受票人, 付款人) to pay a definite sum of money to a payee (受款人). Acts involving negotiable instruments contain: issue (出票), endorsement (背), acceptance (承兑), guarantee (保证), and payment (付款). If any of the above acts involves foreign element, then the negotiable instrument is an international negotiable instrument or a foreign negotiable instrument. Parties to Negotiable InstrumentsParties to Negotiable InstrumentsSee the word version “Parties to Negotiable Instruments”CharacteristicsCharacteristicsValuable securities (有价证券) property right or creditor’s right; based on possession Abstract securities (无因证券) Any one who holds it may assert rights on it, irrespective of the basic legal relationship. Formal securities (要式证券) legal formalities required Wording securities (文义证券) The wording on the bill determines the rights and obligations of the parties. Negotiable securities (流通证券) conditions for negotiability (see next page)Conditions for NegotiabilityConditions for Negotiability Several conditions: Be in proper form; State an unconditional promise or order to pay; State a definite sum of money or a monetary unit of amount; Be payable on demand or at a definite time; Be signed by the maker or drawer.TypesTypesBill of Exchange / Draft (汇票) Promissory Notes (本票) Check / Cheque (支票)Bill of ExchangeBill of ExchangeBill of exchange (or draft) is a written, dated, and signed instrument that contains an unconditional order from the drawer that directs the drawee to pay a definite sum of money to a payee on demand or at a specified future date. The order is valid only if the drawee has an underlying obligation to pay money to the drawer. Three situations: The drawee is holding money on account for the drawer (i.e., the drawee is a bank); (check) The drawer lent money to a drawee (i.e., the drawee is a borrower); (note) The drawer has sold goods to the drawee and the drawee owes欠 the sale price to the drawer (i.e., the drawee is a buyer); (trade acceptance商业承兑汇票)Bill of Exchange (cont’d)Bill of Exchange (cont’d)Types of Bill of Exchange: Time Bills (远期汇票) or Sight Bills (即期汇票) A time bill (or draft with usance) is payable at a definite future time. A sight bill (or demand bill) is payable when the holder presents it for payment or at a stated time after presentment. Banker’s draft (银行汇票) or trade bill (商业汇票) Banker’s acceptance bill (银行承兑汇票) or trade acceptance bill (商业承兑汇票)Bill of Exchange (cont’d)Bill of Exchange (cont’d)Example of Trade Acceptance Bill: SunnySales, Inc. in California has traditionally sold raisins to Gutten Tag, GmBH, in Germany on terms that require Gutten Tag to make payment in 90 days. This year, however, SunnySales needs cash. To get cash, it draws a trade acceptance bill that orders Gutten Tag to pay $100,000 to the order of SunnySales 90 days later. SunnySales then presents the bill to Gutten Tag. Gutten Tag accepts by signing the bill on its face and returning the bill to SunnySales. Gutten Tag’s acceptance creates an enforceable promise to pay the bill when it comes due in 90 days.Promissory NotesPromissory NotesA promissory note is a written promise by the maker to pay a determinate sum of money to the payee. The only difference between a note and a bill is that the maker of a note promises to personally pay the payee, rather than ordering a third party to do so. The rules governing bills apply to notes as well. Various types of notes: Collateral note (质押期票): one secured by personal property Mortgage note (抵押期票): one secured by real property Installment note (分批付款期票): one payable in installments When a bank is the maker promising to repay money it has received, plus interest, the note is called a certificate of deposit (CD).CheckCheckA check is a written instrument that contains an unconditional order from the drawer that directs the drawee to pay a definite sum of money to a payee on demand. Special characteristics of a check: (differences with a bill) The drawee is always a banker or a financial institution; It is payable on demand, therefore not for need to acceptance; When dishonored for expiry, holder may still recourse to the drawer.nullStudent Assignment for Group 7 Compare the formalities (形式要件, 法定的载明事项) of bill of exchange, promissory notes and check with respect to the following laws and conventions: The Bills of Exchange Act (BEA) (England, 1882 ) The Uniform Commercial Code (UCC) (USA) Law of the PRC on Negotiable Instruments (LNI) (China, 1995) The three Geneva Conventions on the Unification of the Law relating to Bills of Exchange and Promissory Notes (ULB, 1930) The Convention Providing a Uniform Law for Bills of Exchange and Promissory Notes The Convention for the Settlement of Certain Conflicts with Bills of Exchange and Promissory Notes The Convention on the Stamp Laws in Connection with Bills of Exchange and Promissory Notes The three Geneva Conventions on Unification of the Law relating to Checks (ULC, 1931) The Convention Providing a Uniform Law for Checks The Convention for the Settlement of Certain Conflicts of Laws in Connection with Checks The Convention on the Stamp Laws in Connection with Checks The UN Convention on International Bills of Exchange and International Promissory Notes (UNIBP, 1988)Website addressesWebsite addressesThe Bills of Exchange Act (BEA) (England, 1882 ) http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_retrieve.pl?&actno=Reved-23&date=latest&method=part The Uniform Commercial Code (UCC) (USA) http://www.law.cornell.edu/ucc/ucc.table.html Law of the PRC on Negotiable Instruments (LNI) (China, 1995) http://www.lehmanlaw.com/resource-centre/laws-and-regulations/banking/negotiable-instruments-law-of-the-peoples-republic-of-china-2004.html For more Chinese laws and regulations, please see: http://www.lehmanlaw.com/resource-centre/laws-and-regulations.html As for the website addresses of the 6 Geneva Conventions, I’ll leave it to you to find them out in the Internet. Prompt notice to me if can’t find. (http://en.io.gov.mo/Legis/International/1/4.aspx)Acts involving Negotiable Instruments (taking Bills of Exchange as an example)Acts involving Negotiable Instruments (taking Bills of Exchange as an example)Issue / Draw (出票) Endorsement (背书) Presentment () Acceptance (承兑) Payment (付款) Dishonor (拒付) and Recourse (追索)Issue / DrawIssue / DrawThe drawing of a draft refers to the act of a drawer to sign and deliver the draft to the payee. (Art. 20, LNI) After signing the draft, the drawer shall bear the responsibility of ensuring the acceptance and payment of the draft. If a drawer has failed to get the draft accepted or paid, the drawer shall undertake to pay the amount and expenses provided for in Article 70 and Article 71 of this law. (Art. 20, LNI) null第七十条 持票人行使追索权,可以请求被追索人支付下列金额和 费用: (一)被拒绝付款的汇票金额; (二)汇票金额自到期日或者提示付款日起至清偿日止,按照中国人民银行规定的利率计算的利息; (三)取得有关拒绝和发出通知书的费用。 被追索人清偿债务时,持票人应当交出汇票和有关拒绝证明,并出具所收到利息和费用的收 据。 第七十一条 被追索人依照前条规定清偿后,可以向其他汇票债务 人行使再追索权,请求其他汇票债务人支付下列金额和费用: (一)已清偿的全部金额; (二)前项金额自清偿日起至再追索清偿日止,按照中国人民银行规定的利率计算的利息; (三)发出通知书的费用。 行使再追索权的被追索人获得清偿时,应当交出汇票和有关拒绝证明,并出具所收到利息和费用的收据。EndorsementEndorsement“Endorsement” refers to the recording of items concerned on the backside of a draft or on the allonge (粘单) to the draft with a signature or seal put to the record. (Art. 27, LNI) An endorsement shall be signed by the endorser, with the date of endorsement. An endorsement without date shall be regarded as an endorsement before the due date. (Art. 29, LNI) In endorsing over a draft to others, the endorsement shall be in uninterrupted series (背书的连续性). The term "uninterrupted series" used in the preceding paragraph refers to the sequential consistency in the signatures or seals by the endorser and the endorsee in the transfer of negotiable instruments. (Art. 31, LNI) An endorser is liable for guaranteeing the acceptance and payment of the bill of exchange held by his subsequent party (后手) after he negotiates the bill by endorsement. The endorser shall pay off 清偿the sum and expenses, as stipulated in Articles 70 and 71 of this Law, to the holder in case of non-acceptance or non-payment of the bill. (Art. 37, LNI)Endorsement (cont’d)Endorsement (cont’d) Types of Endorsement: Blank endorsement (空白背书): “Pay to bearer” Special endorsement (特别背书): “Pay to John Adams” Qualified endorsement (限制性背书): “without recourse” (e.g. lawyer receiving a check paid to a client) Restrictive endorsement (禁止性背书) Conditional endorsement (附条件的背书) Endorsement for collection (托收背书) Endorsement prohibiting further endorsements (禁止进一步背书的背书) Agency endorsement (代理背书) Forged endorsement (伪造背书) For details of the above endorsements, please refer to 奥古斯特编著:<国际商法>(第三版)(影印本),高教出版社,2002年11月第3版, 第656-658页。(Ray August. International Business Law: Text, Cases, and Readings (3rd ed.), Higher Education Press, 2002, pp. 656-658.) Endorsement (cont’d)Endorsement (cont’d) Legal forces of endorsement: Assignment forces (权利让与效力) Upon proper endorsement, the rights in the bill were assigned from the endorser to the endorsee. Guarantee forces (担保效力) The endorser is to guarantee to its subsequent party the acceptance or payment of the bill, and to pay off in case of non-acceptance or non-payment. Qualification-granting forces (资格授予效力) The holder of a bill after successive endorsement will be the right-owner. It is not for the holder of a successive bill to prove that he is the right-owner, but for the drawee or payer to prove that he is not the right-owner.PresentmentPresentmentThe holder of a bill presents the bill to the drawee or payer for whom to either accept or pay. Two kinds: (1) presentment for acceptance (承兑提示); (2) presentment for payment (付款提示) For sight bills, no need for presentment for acceptance; while for time bills, first presentment for acceptance, then presentment for payment when bills become due. Presentment, for acceptance or for payment, must be made within the specified time period, otherwise, the holder may lose the right of recourse against his prior parties.AcceptanceAcceptanceAcceptance is the act of a drawee of a bill who promises to pay the sum on the bill at the maturity of the bill. (Art. 38, LNI) Usu. the drawee (付款人) will write on the face of the bill “accepted”, and will sign his name and date of acceptance. Upon acceptance, the drawee who becomes the acceptor (承兑人) will become the principal debtor of the bill and will bear the absolute and the first level responsibility to pay. In case of dishonor by the acceptor, the holder of the bill may directly sue the acceptor, without prejudice to the right of recourse against his prior parties or even the drawer.Acceptance (cont’d)Acceptance (cont’d)However, if failure to present for acceptance, the holder can only recourse against the drawee, but not against his prior parties or the drawer. As for the period of presentment for acceptance, different countries have different provisions. The Geneva Convention: for bills payable at a fixed period after sight, within 1 year after the date of issue. (Art. 23) China LNI: for bills payable at a fixed date or at a fixed period after the date of issue, before the date of maturity (Art. 39); for bills payable at a fixed period after sight, within 1 month after the date of issue. (Art. 40) The Common Law countries: no specific provisions, “within reasonable period of time”.PaymentPaymentPayment is the act of the hold of a bill or its agent who presents at the maturity of the bill to the drawee or acceptor for payment. If payment by acceptor, the acceptor may recourse to the drawee. Whoever paid, the word “paid” will be written on the bill, which put an end to the bill. Like the presentment for acceptance, the holder must present to the drawee for payment within the specified time. However, unlike the presentment for acceptance, the holder does not lose the right or recourse against his prior parties or the drawer if failing to present for payment within the specified time. (Art. 53, LNI)Payment (cont’d)Payment (cont’d) The period of presentment for payment: The Geneva Convention: for bills payable at fixed date, at a fixed period after the date of issue, or at a fixed period after sight, at the date of maturity or within 2 business days thereafter. (Art. 38) China LNI: for bills payable at sight, 1 month after the date of issue; for bills payable at fixed date, at a fixed period after the date of issue, or at a fixed period after sight, 10 days after the date of maturity. (Art. 53) The BEA (England): for bills payable at sight, within reasonable period of time; for other bills, at the date of maturity.Dishonor and RecourseDishonor and RecourseCircumstances for dishonor: express or implied refusal of acceptance or payment by the drawee; sth. happened to the acceptor or the drawee, such as death, escape and hide, bankruptcy, or business terminated for breaking the law, etc. In case of dishonor, the holder may exercise the right of recourse against the prior parties or the drawer. And in case of non-acceptance for time bills, the holder may exercise the right of recourse immediately without having to wait for the maturity of the bills. Several conditions to recourse: The issuance of a certificate for dishonor (拒绝证书) by the notary公证人员, court, or bank association in the place of the payment unless otherwise required by the bill. Notification to the prior parties or the drawer. If failure, not lose right of recourse, but liable to loss thereof to prior parties or the drawer. Recourse within the stipulated period of time. If expire, lose right.Laws on Negotiable InstrumentsLaws on Negotiable InstrumentsDomestic laws & International conventions 5 legal systems: French law system represented by the 1807 French Commercial Code; only regard NI as a substitute of cash, neglect its role as negotiable or credit instrument; no strict distinction between the NI relationship and the basic relationship German law system represented by the 1871 German NI Law; emphasis on the NI’s role as negotiable or credit instrument; distinction between the NI relationship and the basic relationship; strict requirement on the form Common law system represented by the 1882 BEA and the UCC Chapter 3; emphasis on the NI’s role as negotiable or credit instrument and on the protection of holder in due course; strict distinction between the NI relationship and the basic relationship Laws on Negotiable Instruments (cont’d)Laws on Negotiable Instruments (cont’d)Geneva Convention system eliminates the disparity between French law system and German law system, reflects the characteristics of German law system; members mainly from the continental Europe, but no member from the common law countries UN Convention system coordinates and unifies the Geneva Convention system and the Common Law system from the following aspects: As for the contents: must state date of issue; no bearer bill不记名汇票 (but may turn special bill to blank endorsement) As for the protection of the holder: ordinary holder and protected holder; more protection to protected holder (e.g. not lose right of recourse if failing to timely notify the prior parties in case of dishonor) As for the consequences of forged endorsement: under Geneva Convention, the aggrieved party bears the risk; under BEA, the forger bears the risk; under the UN Convention, the forger bears the risk, but if the forger escapes or becomes bankrupted, the one who gets the bill from the forger will bear the risk.
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