国际商法英文版：7 Chapter 12 Financing.ppt

单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,*,CHAPTER 12,FINANCING,12-1,CHAPTER 12FINANCING,Topics for this chapter:,Financing Foreign Trade,Bills of Lading,Bills of Exchange,Promissory Notes,Negotiability of Bills and Notes,Negotiation and Transfer of Bills and Notes,Letters of Credit,Financing Foreign Operations,Countertrade,12-2,Financing Foreign Trade,Foreign traders use formal documents that assure the parties that their sales contract will go forward as agreed.,The three most important documents used are:,Bill of lading(Ch 11)(,提单）,Bills of exchange,（汇票）,and promissory notes,（本票）,Letter of credit,（信用证）,12-3,Domestic carrier near Plymouth,UK.Formal documents may be used for domestic sales,but most domestic sales are financed through,open-account credit,arrangements.,Photo:Lic Public domain,Bills of Lading,The bill of lading is an essential document for all international sales.,Because it is a document of title,it allows the seller and buyer to exchange control over the goods while the goods are in the actual possession of the warehouseman or carrier.,12-4,Bills of Exchange,A,bill of exchange,is a written,dated,and signed three-party instrument containing an unconditional order by a drawer that directs a drawee,（付款人）,to pay a definite sum of money to a payee,（收款人）,on demand or at a specified future date.,Where the drawee is a bank,the bill is known as a,check,（支票）,.,Where the drawee is a borrower,the bill is a,note,.,Where the drawee is a buyer,the bill is a,trade acceptance,.,（商业承兑汇票）,12-5,The Law Governing Bills of Exchange,Bills of Exchange Act,of 1882 enacted in England and still in force in the UK and former British colonies.,Uniform Commercial Code(UCC),enacted in the US in 49 states.,Geneva Conventions on the Unification of the Laws Relating to Bills of Exchange,(ULB),and two additional conventions signed by most continental European countries.,The widely followed set of international rules governing the collection are the International Chamber of Commerce(ICC)Uniform Rules for Collections.,12-6,Types of Bills of Exchange,The form that a bill of exchange must take depends upon the governing law:,12-7,Time and Sight Bills,A,time bill(,远期票据）,is payable at a definite future time.,A,sight bill,（即期票据）,is payable at the time it is presented or at a stated time after presentment.,12-8,Trade Acceptances,A,trade acceptance,（商业承兑汇票）,i,s the bill of exchange most commonly used in the sale of goods.The seller of the goods is both the drawer and payee.,12-9,Checks,12-10,A,check,is a bill of exchange on which the drawee is a bank.Checks are always payable on demand.,Promissory Notes,A,promissory note,is a written,dated,and signed two-party instrument containing an unconditional promise by a,maker,to pay a definite sum of money to a,payee,on demand or at a specified future date.,The only difference between a promissory note and a bill of exchange is that the maker of a note,promises to personally pay,the payee rather than ordering a third party to pay the payee.,12-11,Ex 12-6 American/French Promissory Notes,12-12,Promissory Notes,A,collateral note,is secured by personal property.,A,mortgage note,is secured by real property.,An,installment note,is payable in installments.,When the bank is the maker promising to repay money plus interest,the promissory note is called a,certificate of deposit(CD).,12-13,Negotiability of Bills and Notes,To be negotiable,a bill must:,be in the proper form,and,contain a promise by the maker or drawer to make payment,.,To meet the promissory requirements,a bill or note must:,State an,unconditional,promise or order to pay,State a,definite,sum of money,Be payable on demand or at a definite time,Be,signed,by the maker or drawer,12-14,Unconditional Promise or Order to Pay,A bill or note must contain a,promise,or an order to pay that is unconditional.,The promise must be,expressed,in the bill or note and may not be,implied,.,The promise or order,cannot be conditioned,upon the performance of some other obligation,such as delivery of goods in the future.,Mere reference to some other agreement,such as the underlying contract for the sale of goods that caused the bill or note to be issued,does not make the bill or note nonnegotiable.(in Common Law Countries,not Civil Law),12-15,Definite Sum of Money or Monetary Unit of Account,A bill or note must be,payable in money,which must be for a definite sum.,The sum paid must be money.,The sum paid must be,certain,or determinate.The amount to be paid must be ascertainable from the bill or note itself without reference to an outside source.,Payments can be made in installments,but the,interest must be fixed,not variable.,12-16,Payable on DemandSigned by the Maker or Drawer,The,time,when the bill or note is payable has to be ascertainable from its face.,The time requirement establishes when the obligation is due,establishes when the statute of limitations runs,and defines the period for calculating interest.,The bills or notes must be,signed,by the drawer or maker.A signature can be,any symbol,executed or adopted by a party with present intention to authenticate a writing.,12-17,Case 12-1,Constantaras v.Anagnostopoulos,Defendant signed several checks as a surety or coprincipal.The checks were drawn by a third party who never signed them.,Issues,:Was defendant who signed the check as a surety liable when the bank refused to pay?Secondly,was the check a nullity prior to the drawers signature or was it a legal bill of exchange?,Held,:It was a bill when properly prepared and when delivered,the defendant became bound as a surety on the instrument.,12-18,The Negotiation and Transfer of Bills and Notes,To satisfy commercial needs,bills and notes have to be freely transferable.,The transfer of rights under a contract is called an,assignment(,转让）,.The assignee acquires only those rights that the assignor possessed.,Defenses that can be raised against the assignor may be raised against the assignee.,Aware of problems in taking instruments by assignment,bankers and merchants prefer to be paid in cash or by negotiable instrument.,12-19,Negotiation,Negotiation,（议付）,is the transfer of a bill or note in such a way,usually by endorsement(,背书）,or delivery,（交付）,that the recipient becomes a holder.,12-20,Negotiating Order Paper,Order,paper,(,指示票据is a bill or note that either:,Contains the name of a payee capable of endorsing it(e.g.,“pay to the order of Keith Jones),or,Contains as its last endorsement a,special,endorsement,（具名背书）,(e.g.,“pay to Ned Vork”).,Order paper is negotiated by,delivery,and endorsement.,12-20,Negotiating Bearer Paper,Bearer paper,is an instrument that either:,contains on its face an order to pay bearer or to pay in cash,or,contains as its last endorsement a,blank endorsement,.This is the signature of the payee or the last endorsee named in a special endorsement.,12-21,Case 12-2Miller v.Race,Finney owed 21 pounds and 10 shillings to Odenharty.Finney purchased a note in that amount and mailed it.It was stolen.Miller,an innkeeper,came into possession in the normal course of business.,Miller presented the note to Race,the bank clerk,who refused to pay the note.,12-22,Case 12-2Miller v.Race,Issue,:Whether Miller had a sufficient property in this bank note to entitle him to recover its stated value.,Held,:The innkeeper took the note,bona fide,in his business from a person who did not arouse suspicion.A bank note is universally treated as money.“No dispute ought to be made with the bearer of a cash notein regard to commerce,and for the sake of credit.”Judgment for the plaintiff.,Query,:Would the result have been the same if the innkeeper had conspired to steal the mail with others?,12-23,Converting Order to Bearer Paper and Bearer to Order Paper,Order paper,can be converted to bearer paper by,an endorsement in blank,or by an endorsement to,pay to the bearer.,Bearer paper can be converted to order paper through the use of a special endorsement.,12-24,Check drawn by President Benjamin Harrison in 1880.While it appears to be order paper,it is bearer paper.,Endorsements,An endorsement is the act of payee,drawee,accommodation party,or holder of a negotiable instrument in signing the back of the instrument,with or without qualifying words,to transfer rights in the instrument to another.,There are four basic kinds of endorsements:,Special endorsements(,具名背书）,Blank endorsements,（空白背书）,Qualified endorsements,（无追索背书）,Restrictive endorsements,（限制性背书）,12-25,Qualified Endorsement,A,qualified endorsement,is an endorsement in which,the endorser,does not,guarantee,that the instrument will be accepted and paid by the drawer or maker.,This is commonly done by adding the words without recourse.,This type of endorsement is often used by persons,acting in a representative capacity,such as an attorney who has received funds that are to be passed on to a client.,12-26,Restrictive Endorsements,A,restrictive endorsement,restricts the rights of subsequent holders.These include:,Conditional endorsementan endorsement that conditions payment on the occurrence of some event.,Endorsement for collection,an endorsement that makes the endorsee a collection agent for the endorser.,Endorsement prohibiting further endorsements,an endorsement that states that the instrument may only be paid to a particular person.,Agency endorsement,requires the endorsee to pay the proceeds from the negotiation of the instrument to the endorser or a designated third party.,12-27,Effect of Different Endorsements,12-28,Forged Endorsements,A,forgery,is the false making or altering of a writing with the intent to defraudUnder the ULB,the drawer or maker is the party who must sue the forger of assume the loss.The ULB makes a forged endorsement,fully effective,.,The common law makes a forged endorsement,ineffective,placing the burden on determining the validity of an endorsement on the endorsee.,Two exceptions to the common law rule are the,imposter rule,and the,fictitious payee,rule,.,12-29,Case 12-3:Mair v.Bank of Nova Scotia,The appellant issued a check to“Barbara Hill”for architectural work.The check was altered to add“Associates”to the payee name.,The check was honored by the Bank of Nova Scotia.,When the cancelled check was forwarded to the appellant,he brought the alteration to the attention of the bank and demanded reimbursement.The bank refused.,12-30,Case 12-3:Mair v.Bank of Nova Scotia,Any material alteration of a bill or note invalidates it.,The court found that there was a material alteration.Because the check was irregular on its face,the bank was a holder,but not a holder in due course,.,Since Mair could not show any actual damages,he was awarded$5,nominal,damages.,12-31,Limitations on the Excuses that Drawers and Makers Can Use to Avoid Paying Off a Bill or Note,Anyone who acquires a bill or note by negotiation is a holder who is entitled to payment from the maker or drawer.Under ULB,there are only three excuses for not having to pay off the instrument that are available to these parties.,12-32,Limitations on the Excuses that Drawers and Makers Can Use to Avoid Paying Off a Bill or Note,Common law holder,A person who acquires an instrument by negotiation.,Common law holder in due course,A holder who acquires a negotiable instrument for value,in good faith,and without notice that it is overdue,that it has been dishonored,or that persons required to pay on it have a valid excuse for not doing so.,12-33,Limitations on the Excuses that Drawers and Makers Can Use to Avoid Paying Off a Bill or Note,12-34,Liabilities of Makers,Drawers,Drawees,Endorsers,and Accommodation Parties,For makers,drawees,and accommodation,（保证）,parties,they must,make payment,on presentment of the instrument.It must be presented on the day it is due(other than demand instrument)or within a reasonable time(demand instrument).,12-35,Liabilities of Makers,Drawers,Drawees,Endorsers,and Accommodation Parties,Liability on the instrument for drawers,endorsers,and accommodation endorsers,is secondary,.They have to pay only if the maker,drawee,or accommodation maker fails to do so.,Three steps,holder or transferee must take before he or she can seek recourse from parties with secondary liability:,Instrument has to be properly presented.,If bill of exchange,must,be protested,certificate of dishonor,must be made and presented.,Give notice to parties with secondary liability.,12-36,Case 12-4:Far East Realty Invest.v.Court of Appeals et al.,In September 1960,Dy Hian Tat,Siy Chee,and Gaw Suy An obtained a loan for P4,500 from Far East.Dy An drew a check on his account for P4,500 and the other two men signed as accommodation parties.,Loan was not repaid.Four years later,Far East presented the check and the bank refused to pay.The account was closed.Notice of dishonor was not given to the parties for an additional four years,until April 1968.,Issue,:Whether or not presentment for payment and notice of dishonor of the questioned check were made within a reasonable time.,12-37,Case 12-4:Far East Realty Invest.v.Court of Appeals et al.,“,Reasonable time,”defined as so much time as is necessary under the circumstances for a reasonable,prudent,and diligent man to do,conveniently,what the contract or duty requires should be done.,Held,:The payees delay of four years in presenting the check was not within a reasonable time.The bank did not have to honor the check.,12-38,Warranty Liability,Large difference in warranty liability between Europe and the US.In Europe,a party must sign the instrument to be liable on it,meaning,in Europe there is no warranty liability.,In US,any person who transfers an instrument in exchange for consideration,which even includes bearer paper,makes five warranties:,Transferor has good title,All signatures are genuine or authorized,Instrument has not been materially altered,No defense good against the transferor,Transferor has no knowledge of insolvency,12-39,Case 12-5:Charles R.Allen,Inc.v.Island Cooperative Services Assoc.,Island Coop was paid for purchase of potatoes by Vegetable Mart by way of bank draft.,Island Coop sold this draft to Bank of Nova Scotia.,Bank of Nova Scotia forwarded the draft to South Carolina bank for collection.When Vegetable Mart deposited funds to cover the draft,the funds were attached by Allen to try and collect judgment against Island Coop.,Issue,:Whether the Bank of Nova Scotia was the absolute owner of the proceeds of the draft at the time of attachment of the funds by Allen.,12-40,Case 12-5:Charles R.Allen,Inc.v.Island Cooperative Services Assoc.,Held,:The title to the draft in question passed to the Bank of Nova Scotia when it purchased it for a discount and gave the proceeds to Island Coop unconditionally.,Since there was nothing to qualify the effect of such act,the bank acquired title of the draft and was owner.,12-41,Letters of Credit,（信用证）,A,letter of credit,is an instrument issued by a bank or another person at the request of an,account party,that obliges the issuer to pay to,a,beneficiary,