chapter 2.1 draft.ppt

1、,Instruments in International Settlement,Terminologies,Negotiable instruments: 流通票據(jù)，可轉(zhuǎn)讓票據(jù) Bill of exchange：Draft匯票 Promissory note： 本票 Check： 支票 Document of title：權(quán)力憑證,1. The three important negotiable instruments: Bill of exchange, Promissory Note and Check (or Cheque) 2. The function of a negotiab

2、le instrument 3. The characteristics of each instrument 4. The essentials of each instrument,Chapter Objectives,Documents are playing more and more important roles in international settlement because payments are made against documents rather than the actual goods.,What is negotiable instruments?,Co

3、mmercial Documents,Financial Documents,represents the title of goods,refer to negotiate instruments made out for the purpose of making or collecting payments,Broad meaning of document,Document of Title, evidence the legal right of possession or control of commodities or money.,Narrow meaning of docu

4、ment,Drafts Promissory Notes Cheques,Understanding negotiable instruments from words meaning Negotiable Transferable from one person to another by delivery or by delivery and endorsement Instrument Written legal document Simple Definition Written legal document which can be transferred from one pers

5、on to another by delivery or by delivery and endorsement（背書）,What is negotiable instruments?,An unconditional promise or order signed by the maker to transfer a specified sum of money on demand or at a fixed future time to the person named on the instrument or to the bearer. Examples of negotiable i

6、nstruments are promissory notes, drafts and cheques. Negotiation can be effected only by delivery交付or endorsement背書 and delivery. it is not necessary to give notice of transfer to the liable party on the instrument as title passes on delivery to transferee. Negotiation gives the transferee(受讓人) a ri

7、ght of action in his own name against the original promisor or acceptor 權(quán)利的讓渡 The transferee in good faith and for value can acquire a better title than that held by all his prior parties.,What is negotiable instruments?,1) 出票人drawer 2) 付款人payer/drawee 3) 收款人payee 4) 承兌人acceptor 5) 背書人endorser 被背書人

8、endorsee 6) 持票人holder 7）付對價(jià)持票人holder for value 8）正當(dāng)持票人/善意持票人 holder in due course, bona fide holder 9) 參加承兌人acceptor for honor 10) 保證人guarantor,Parties to a negotiable instrument, Acting as transferable tools（流通工具） Direct cash payment in international transaction is inconvenient Acting as payment to

9、ols（支付工具） Substitute for money, basic function Widely accepted to take the place of money in circulation Can be endorsed(背書) Acting as credit tools（信用工具） Core function because credit is the “l(fā)ife” of instrument,Functions of Negotiable Instruments,Instruments can take the place of currency in several

10、 aspects, but they are not currency. Instruments rely on private credit of issuer, acceptor or endorser (背書人), legal currency is the mandatory circulation (強(qiáng)制流通） by law. The creditor has to accept when the debtor repays with the legal currency, but he has the right to refuse accepting the instrument

11、s as repayment if he does not agree. Instruments can be restricted by time, limitation and invalidity, instruments can play the roles of payment and credit, they will no longer have those currency functions following their termination （終結(jié)）.,Differences between currency and Instrument,Means of paymen

12、t 支付工具,Importer,Exporter,instrument,commodity,起源：古希臘羅馬時(shí)代的“自筆證書”,Instruments can take the place of currency in several aspects, but they are not currency. Instruments rely on private credit of issuer, acceptor or endorser (背書人), legal currency is the mandatory circulation (強(qiáng)制流通） by law. The creditor

13、has to accept when the debtor repays with the legal currency, but he has the right to refuse accepting the instruments as repayment if he does not agree. Instruments can be restricted by time, limitation and invalidity, instruments can play the roles of payment and credit, they will no longer have t

14、hose currency functions following their termination （終結(jié)）.,Differences between currency and Instrument,Transferable instrument 流通工具,B Co. Debtor of ACo. creditor of C Co.,A Co.,C Co.,make payment,make payment,draw an instrument,present instrument,make payment,過戶轉(zhuǎn)讓（assignment）非流通 特點(diǎn)：書面形式 轉(zhuǎn)讓通知原債務(wù)人或登記過戶

15、 受讓人權(quán)利受前手缺陷的影響 當(dāng)事人：轉(zhuǎn)讓人、受讓人、原始債務(wù)人 交付轉(zhuǎn)讓(transfer) 準(zhǔn)流通的或半流通的 特點(diǎn)：交付背書轉(zhuǎn)讓 不通知原債務(wù)人 受讓人的權(quán)利受前手權(quán)利缺陷的影響 當(dāng)事人：轉(zhuǎn)讓人，受讓人 流通轉(zhuǎn)讓(negotiation) :可流通的 特點(diǎn)：正當(dāng)受讓人權(quán)利優(yōu)于前手，不受其缺陷的影響,forms of circulation,credit instrument 信用工具（資金融通作用）,Exporter,Discounting Bank,term bill,discounting,1) Establishing the claim for a sum certain in

16、money （票據(jù)創(chuàng)設(shè)了付給一定金額的請求權(quán)） The aim of issuing instrument is not to prove the existed rights and obligations, but to establish some rights and obligations.,Characteristics of Negotiable Instruments,2) Non-causative：Accepting the instruments without investigating or questioning（無因性） Once the instrument i

17、s issued, rights on the instrument and reasons why instruments are created are separated，independent to each other. (票據(jù)一旦做成，票據(jù)上權(quán)利即與其原因分離，成為獨(dú)立的票據(jù)債權(quán)債務(wù)關(guān)系，不受先前原因關(guān)系存在與否的影響）,Characteristics of Negotiable Instruments,Reasons to issue instrument ( Basic relationship of instrument),Capital relationship 資金關(guān)系,

18、Value relationship 對價(jià)關(guān)系,Drawer deposits money in payer (bank),Payer agrees to give money to drawer,commodity transaction,funds lending and borrowing,service providing,舉例：甲交給乙一張經(jīng)付款銀行承兌的期票，作為向乙訂貨的預(yù)付款，乙在票據(jù)上背書后轉(zhuǎn)讓給丙以償還原欠丙的借款，丙于到期日向承兌銀行提示取款，恰遇當(dāng)?shù)胤ㄔ汗嬖撔杏诋?dāng)天起進(jìn)行破產(chǎn)清理，因而被退票。丙隨即向甲追索，甲以乙所交貨物質(zhì)次為由予以拒絕，并稱已于10天前通知銀行止付

19、，止付通知及止付理由也已通知了乙。在此情況下丙再向乙追索。乙以票據(jù)系甲開立為由推諉不理。丙遂向法院起訴，被告為甲、乙與銀行三方。你認(rèn)為法院將如何判決？ 甲、乙的拒付理由不成立，銀行已破產(chǎn)清理，只需向甲、乙追索即可。,舉例說明：甲欠乙100元而出具以乙為債權(quán)人的字據(jù)給乙，讓其憑字據(jù)找丙去取，同時(shí)乙原來曾欠丙30元未還，隨后乙將此字據(jù)又轉(zhuǎn)讓給丁。問丁能否從丙處獲得全額款項(xiàng)？ 如是字據(jù)，按民法原則，丙可采取將其對乙的30元債權(quán)轉(zhuǎn)讓給丁的辦法來沖抵而只需付70 如是票據(jù)，按票據(jù)法原則，必須全額付款，而不能用乙的權(quán)利缺陷來對抗丁的正當(dāng)票據(jù)權(quán)利,Example: A deposit money in B,

20、 and A buys goods from C, then A issued an instrument to C, paid by B; C transfers the instrument to D because C once borrowed money from D; And D transfers the instrument to E for some value relationship; E asks B to make payment.,Characteristics of Negotiable Instruments,3) Requisite in form：The f

21、orm of instruments should keep up with law. Only those in accordance with law can be protected.（要式性） 4) Presentment: 提示性 the holder should present the instrument to the payer when he / she ask for payment 5) Returnability: 返還性 each instrument has expiry date, it should be returned to the payer after

22、 payment.,Characteristics of Negotiable Instruments,All legal rules and laws with regard to negotiable (credit) instruments fall into two categories:,Legal system for negotiable instrument,Common Law(英美法系） Representing the British Commonwealth of Nations and USA. Including Bills of Exchange Act esta

23、blished in 1882 in Britain and Uniform Negotiable Instruments Law of 1896 in USA.,Continental Legal System （大陸法系） Representing the main countries in the European Continent Referring to Uniform Law for Credit Instruments at Geneva which was established in 1931,The UN has also drawn laws in this field

24、 in an effort to eliminate the major differences existing in the two systems. Convention on international Bills of Exchange and International Promissory notes Convention on International Check,英美法系與大陸法系的主要差異： 偽造背書以后的擁有匯票人，日內(nèi)瓦統(tǒng)一票據(jù)法認(rèn)為可以成為持票人，付款人承兌人支付票款給持票人可以解除自己的付款責(zé)任，匯票丟失的賠償責(zé)任由偽造人及其直接前手負(fù)擔(dān)；英國票據(jù)法認(rèn)為不能成為持

25、票人，付款人承兌人支付票款給擁有匯票人不能解除自己的付款責(zé)任，匯票丟失的賠償責(zé)任由偽造人及其直接后手負(fù)擔(dān)。 保證的票據(jù)行為， 日內(nèi)瓦統(tǒng)一票據(jù)法有完整的規(guī)定，而英國票據(jù)法僅有近似的規(guī)定。 英國票據(jù)法有明確規(guī)定票據(jù)的對價(jià)觀點(diǎn)。,Types of Negotiable Instruments,A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it

26、 is addressed to pay on demand or at a fixed or determinable future time a sum certain in money, to, or to the order of, a specified person, or to bearer. In a simple words, A bill of exchange or draft is a three-party instrument that is an unconditional written order by one party that orders the se

27、cond party to pay money to a third party. 匯票是由出票人向另一人簽發(fā)的要求即期、定期或在可以確定的將來時(shí)間向指定人或根據(jù)其指令向來人無條件支付一定金額的書面命令。,What is Bills of Exchange (Draft)?,three parties (三個(gè)當(dāng)事人） One party orders another party to pay a “sum certain of money to a third party. 1“Drawer”Party who draws the bills and orders another to pay

28、 the third party. 2“Drawee”(payer) Party who is ordered to pay the third party. 3“Payee”Third party who will receive payment,Bills of Exchange (Draft),1. The word “exchange” “bill of exchange ”or “draft” E.g “Exchange for 100 USD” or “Draft for 100 USD” The purpose of indicating this word on a bill

29、of exchange is to distinguish a bill from other kinds of negotiable instrument such as promissory notes or cheques.,Elements of Bill of Exchange (Draft),Exchange for USD25,000 Shanghai,March 19th,2013 At sight pay to the order of the Bank of China the sum of twenty-five thousand US dollars only Valu

30、e received To The Citi Bank For China National Chemicals Import ,Make choice of whether the following bills are acceptable or not. Explain the reason how do you make choice?,1) Pay to the order of ABC Co. the sum of five thousand US dollars plus interest. 2) Pay to the order of ABC Co. the sum of fi

31、ve thousand US dollars plus interest calculated at the rate of 6% per annual from the date hereof to the date of payment. Pay to the order of ABC Co. the sum of one thousand US dollars plus interest calculated at the rate of *%p.a.,unacceptable,acceptable,“Uniform law on Bills of Exchange and Promis

32、sory Notes 1930 of Geneva”: The beginning date is the date of issue, the maturity date is the date of payment. Suppose date of issue is 23th September, date of payment is 23th October. Interest = 5000*30/360*6%=25 dollar Total amount=5000+25=5025 dollar,Interest clause,Installment clause,“Bills of E

33、xchange Acts”: Installment payment is permitted. “Uniform law on Bills of Exchange and Promissory Notes 1930 of Geneva”: Installment payment is not allowed.,(1) Pay to the order of ABC Co. the sum of five thousand US dollars by installment . (2) At 30 days after date pay to the order of ABC Co. the

34、sum of five thousand US dollars by ten equal consecutive monthly installments. (3)Pay to the order of ABC Co. the sum of one thousand US dollars in 10 equal consecutive half-yearly installments within 5 years after the date hereof provided that upon default in payment of any installment the unpaid b

35、alance becomes due.,違約付款的規(guī)定可以適用于匯票以外的任何分期付款,unacceptable,acceptable,acceptable,Question At 30 days after date pay to the order of A Co. the sum of five thousand US dollars by ten equal consecutive monthly installments.,If the date of issue is 20, April, please list the ten times of payment.,one curr

36、ency converted into another currency equivalent,Pay to the order of A Co. the sum of five thousand US dollars converted into sterling equivalent at current rate of exchange.,Foreign exchange rate,8. Name and signature of Drawer “Any symbol executed or adopted by a party with present intention to aut

37、henticate a writing.” The drawers signature serves as a means of authenticating a bill of exchange. Other acceptable signature: in the form of a trade name 貿(mào)易公司的名稱 a corporations seal 公司的圖章.,Elements of Bill of Exchange,Exchange for USD25,000 Shanghai,March 19th,2013 At sight pay to the order of the

38、 Bank of China the sum of twenty-five thousand US dollars only Value received To The Citi Bank For China National Chemicals Import * Taken before maturity without notice of its previous dishonor; * Taken in good faith and for value ; * Taken without notice of any infirmity in the instrument or defec

39、t in the title of the person negotiating it.,Who is the holder for value?,A,C,D,E,F,G,H,B,Drawer,drawee,Payee,Goods,gift,proceed,pick-up,Service,endorser: C, D, E, G endorsee: D, E, F, H,Who is a creditor or debtor to a draft?,Debtor is that who signs his/her name on the face or the back of an instr

40、ument.,drawer,endorser,guarantor,acceptor,The creditors rights,(1) to duly present for acceptance or payment; (2) to transfer a bill to another person by endorsement on the back or delivery of it; to give notice of dishonor to the prior party and has the right of recourse.,Sight draft and usance dra

41、ft before acceptance (1) drawer takes primary liability for payment (2) the first endorser takes secondary liability . Accepted usance draft (1) acceptor takes primary liability for payment (2) drawer takes secondary liability .,The debtors liability,Classification of bills of exchange:, 1. Accordin

42、g to the tenor: (1) Sight draft (on demand draft) 即期匯票 (2) Term draft (tenor draft, usance draft, time draft) 遠(yuǎn)期匯票 Sight draft: A sight draft is a bill of exchange drawn by the drawer for immediate payment. The bill is payable at sight by the drawee on presentation by the collecting bank.The words “

43、on demand” or “at sight” or “on presentation” are indicated on the bill. Term draft A term bill is a bill of exchange drawn by the drawer and provides time for the drawee to pay at a fixed or determinable future date. Such bill becomes a clean bill when the term bill is delivered to the payee for pa

44、yment.,Classification of bills of exchange:, 2. According to the acceptor (1) traders acceptance bill 商人承兌匯票 It is a term bill drawn on a trader and accepted by him. (2) Bankers acceptance bill 銀行承兌匯票 It is a time bill drawn on a bank and accepted by this bank. 3. According to the drawer: (1) Banker

45、s draft or bank draft 銀行匯票 It is a draft drawn by a bank on another bank. (2) Trade bill 商業(yè)匯票 It is a bill issued by a trader on another trader or on a bank.,Classification of bills of exchange:, 4. According to whether or not the shipping documents are attached: (1) Clean bill 光票 It is a bill witho

46、ut commercial documents attached thereto. (2) Documentary bill 跟單匯票 It is a bill with commercial documents attached thereto. 5. finance bill of exchange 融資匯票,Classification of bills of exchange:,Acts of Negotiable Instruments,Acts of Bill of Exchange,1) Issue （出票） 2) Endorsement （背書） 3) Presentation

47、 （提示） 4) Acceptance （承兌） 5) Payment （付款） 6) Dishonor （拒付或退票),7) Recourse （追索) 8) Notice of Dishonor (拒付通知) 9) Protest (拒絕證書) 10) Acceptance for Sbs Honor (參加承兌) 11) Payment for Sbs Honor and Pay or for Bbs Honor (參加付款和參加付款人) 12) Guarantee (保證),1) Issue（出票） To issue a draft = To draw a B/E Act of iss

48、ue comprises two acts to be performed by the drawer. One act is to draw and sign a draft, the other is to deliver it to the payee.,Acts of Bill of Exchange,Drawer,Payee,Draw and sign,Delivery, 2) Endorsement （背書） Endorsement is the signature of the endorser made on the back of bill of exchange. The

49、aim of the endorsement is to transfer the draft from one person to another. Endorsement comprises two acts. One is to sign on the back of the draft, the other is to deliver it to the endorsee. Must be made for the whole amount of the draft, and an endorsement for a partial amount will be considered

50、as invalid endorsement.,Acts of Bill of Exchange, Four types of endorsement Blank endorsement: an endorsement in blank is one that shows an endorsers signature only and specifies no endorsee. It is also called a general endorsement. A draft so endorsed becomes payable to bearer. For example,Acts of

51、Bill of Exchange,For A Co., London (the endorser) Signature (of the endorser),Exchange for USD25,000 Shanghai,March 19th,2013 At sight pay to the order of the ABC Co. the sum of twenty-five thousand US dollars only Value received To Bank of China For China National Chemicals Import (2) where a bill

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

53、wait the maturity of the bill and then present it for payment.,Acts of Bill of Exchange,General acceptance Accepted 10th October, 2012 For the bank of china, GZ branch Qualified acceptance (1) conditional acceptance Accepted 10th October, 2012 Payable after receiving the bill of lading For the bank

54、of china, GZ branch,(2) partial acceptance that is to say , an acceptance to pay part only of the amount for which the bill is drawn On a bill drawn for 20000, Accepted 10th October, 2012 Payable for the amount of GBP15000.00only For the bank of china, GZ branch,(3) local acceptance that is to say,

55、an acceptance to pay only at a specified place. An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere. Accepted 10th October, 2012 Payable at Agriculture Bank of China, GZ and there only For the bank of

56、 china, GZ branch,(4) Qualified as to time On a bill drawn payable six months after date Accepted 10th October, 2012 Payable at twelve months after date For the bank of china, GZ branch, 5) Payment（付款） Act of payment is performed when a bill of exchange is paid. A bill is discharged by payment in du

57、e course only when such payment is made by or on behalf of the drawee or the acceptor. discharged =解除付款業(yè)務(wù) payment in due course=正當(dāng) 付款 on behalf of=代表某人利益,(A) Payment should be made by or on behalf of the drawee or the acceptor and not by the drawer or any endorser. The payment made by the drawer or

58、any endorser is not a final payment because he may claim payment from the drawee or the acceptor. (B) Payment should be made on or after the maturity date of the bill and can not be made in advance. (C) Payment should be made to the holder and if the bill has been transferred, the bank will check th

59、e endorsements or at least the sequence of the endorsements before making payment. (D) Payment should be made in good faith, without knowing that the holders title thereto is defective.,Acts of Bill of Exchange, 6) Dishonor（拒付或退票） Act of dishonor is a failure or refusal of acceptance on or payment of a bill of exchange when presented. When a bill duly presented for acceptance is not accepted within a customary time, the presenting person must treat it as d