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UCC 3- Comm. Paper
Barbri Review
| Question | Answer |
|---|---|
| In General- Introduction | Convenient, safe, freely transferable substitute for cash in commercial situations; Article 3: If an instrument is in special form and transferred in special way, in good faith, w/o notice of defenses to claimed holder in due course able to enforce |
| In General- Exam process; Fact pattern | Likely to involve situation someone has refused to pay on item that may be negotiable instrument, or Issues concerning ownership of instrument and whether claims valid against person trying to get paid |
| In General- Exam process; Approach: Determine if instrument negotiable | Memorize elements of negotiability; If not negotiable then law of Ks applies |
| In General- Exam process; Approach: Determine whether instrument has actually been negotiated | Memorize elements of negotiation; If instrument's transfer doesn't amount to negotiation, holder in due course (HDC) will not benefit party trying to get paid |
| In General- Exam process; Approach: Determine whether person presenting instrument for payment qualifies as HDC | Memorize requirements for HDC status; Key to answer exam question |
| In General- Exam process; Approach: Determine why instrument not paid, and whether reasons constitutes defense | Memorize and recognize "real" defenses (all others "personal" and not good against HDC); If presenting party not HDC, no special protection against even personal defenses, so analyze under K law |
| In General- Exam process; Answer question specifically | Do not recite rules; Answer directly with analysis |
| Formal Requisites of Negotiability- Negotiability | Whether an instrument is negotiable depends on its form; Must meet the very technical formal requisite of negotiability listed in UCC |
| Formal Requisites of Negotiability- Negotiability; Defined | Written and signed- 1. Unconditional, 2. Promise or order to pay, 3. A fixed amount of money- a. Payable to order or bearer at time issued, b. Payable on demand or definite time, and c. Does not state any unauthorized undertaking or instruction |
| Formal Requisites of Negotiability- Negotiability; When promise or order conditional | Instrument condition and not negotiable if it- 1. Expressly state condition, or 2. State promise/order subject to or governed by another writing |
| Formal Requisites of Negotiability- Promise or order to pay; Note must contain promise to pay | Promise is written undertaking to pay money signed by person undertaking pay; Draft must contain order to pay; An order is written instruction to pay money signed by person giving order |
| Formal Requisites of Negotiability- Promise or order to pay; Note must contain promise to pay: Writing required | UCC is very liberal as to what constitutes writing; It may be printing, typing, or "any other intentional reduction to tangible form" |
| Formal Requisites of Negotiability- Promise or order to pay; Note must contain promise to pay: Signature required | UCC very liberal; Signature may be handwritten, typed, printed, or made in any other manner; Made in any name adopted for purpose of signature; Signature need not be at end of instrument, may be in body |
| Formal Requisites of Negotiability- Fixed amount of money; What is money? | Any medium of exchange authorized or adopted by gov't; Currency and current funds: money; Instrument may still be negotiable if it is payable in currency |
| Formal Requisites of Negotiability- Fixed amount of money; What is money?: Foreign currency proper | Negotiable even if foreign money, unless instrument otherwise provides, it is payable in specified foreign money or its equivalent in US dollars at current bank exchange rate at time and place instrument paid |
| Formal Requisites of Negotiability- Fixed amount of money; What is money?: Other consideration improper | Not negotiable if calls for payment with something other than money (gold) or allows payments in alternative |
| Formal Requisites of Negotiability- Fixed amount of money; What is fixed? | 1. Principal must be fixed, 2. Interest need not be fixed, a. Specified interest rate, b. Unspecified interest rate |
| Formal Requisites of Negotiability- Fixed amount of money; What is fixed?: Interest need not be fixed, Specified interest rate | Amt of interest need not be fixed; Variable interest rate or indexed rate may be used; Interest rate need not be determinable form face of instrument; Rate may require reference to info. not contained in instrument |
| Formal Requisites of Negotiability- Fixed amount of money; What is fixed?: Interest need not be fixed, Unspecified interest rate | If instrument says it is payable with interest but does not state how much interest, judgment rate implied |
| Formal Requisites of Negotiability- Payable to order or to bearer | To be negotiable instrument must be payable to order or to bearer; Order paper is payable only to person named; Bearer paper is payable to anyone legitimately possession instrument |
| Formal Requisites of Negotiability- Payable to order or to bearer; To order | Promise or order payable to order if it is payable to order of an identified person or to an identified person or order |
| Formal Requisites of Negotiability- Payable to order or to bearer; To bearer | Promise or order to payable bearer if- 1. States that it is payable bearer, to order of bearer, to order or bearer, to order and bearer, or otherwise indicated person in possession of promise or order entitled to payment, 2. Does not state payee |
| Formal Requisites of Negotiability- Payable to order or to bearer; Identification of payee | Person to whom an instrument is payable is governed by intent of person signing as or on behalf of issuer; If more than one person issues instrument, any person intended by any signer may properly be paid |
| Formal Requisites of Negotiability- On demand or at a definite time | To be negotiable, instrument must be payable on demand or definite time |
| Formal Requisites of Negotiability- On demand or at a definite time; Demand | Instrument payable on demand if it states- 1. Payable "on demand" or "at time for payment" |
| Formal Requisites of Negotiability- On demand or at a definite time; Definite time | Instrument payable at a definite time if it is payable- 1. On fixed date, 2. On elapse of specified period of time after signt or acceptance, or 3. At some time readily ascertainable at time instrument is issued |
| Formal Requisites of Negotiability- No unauthorized undertaking or instructions | To be negotiable, an instrument generally cannot contain any unauthorized undertaking or promises |
| Formal Requisites of Negotiability- Miscellaneous provisions; Rules of construction | If an instrument contains contradictory terms, typewritten terms control printed terms and handwritten terms control both; Words control figures unless words are ambiguous or uncertain, in which case figures control |
| Formal Requisites of Negotiability- Miscellaneous provisions; Opting out | Promise or order that otherwise meets requirements of negotiable instrument will not be negotiable if it contains conspicuous statement that it is not negotiable instrument or Article 3 not applicable |
| Formal Requisites of Negotiability- Miscellaneous provisions; Two or more signers in single capacity | If two people sign as makers of a note, either one can be held liable for full value of note |
| Negotiation- Becoming a holder (holder person in possession of instrument with right to enforce it) | Key to protection of Art 3 is HDC status; To become HDC, one must first become holder of negotiable instrument requiring proper negotiation; Negotiation nothing more than process specified by Art. 3 for transferring negotiable instrument |
| Negotiation- Becoming a holder; Bearer instruments | Negotiable instrument that is issued as bearer paper or subsequently converted into bearer is negotiated simply by transferring possession of instrument |
| Negotiation- Becoming a holder; Order instruments: Negotiation to specific payee | Instrument payable to an identified person is negotiated by transferring possession of instrument along with indorsement of identified person |
| Negotiation- Becoming a holder; Order instruments: Payee's indorsement must be valid | Generally, right to enforce an order instrument wil not pass unless payee's indorsemetn is authorized and valid; Possibly agency issue |
| Holders In Due Course | Determining whether person is an HDC is two-step process- 1. Determine whether person is "holder", and 2. Determine whether person holds in "due course" |
| Holders In Due Course- Holder | Transferee must have possession, and instrument must be payable either to bearer or person in possession; Instrument must be free of forgeries of those names necessary to chain of title |
| Holders In Due Course- Due course | Holder who takes instrument- 1. For value, 2. In good faith, and 3. Without notice that- a. Overdue or has been dishonored, b. Contains unauthorized signature, c. There is claim, or d. Any party has defense or claim in recoupment |
| Holders In Due Course- Due course; Forgery, alteration, & authenticity | Instrument must not bear apparent evidence of forgery, alternation, or be so irregular as to call into questions its authenticity |
| Holders In Due Course- Due course; Types of value | 1. Performance agreed consideration, 2. Acquisition by holder of lien/security interest in instrmt, 3. Take instrmt payment of antecedent debt, 4. Trading negotiable instrmt, or 5. Instrmt exchange for irrevocable obligation to 3rd person by person ta |
| Holders In Due Course- Due course; Good faith | Good faith means honesty in fact and observance of reasonable commercial standard of fair dealing |
| Holders In Due Course- Due course; Good faith: Honest in fact | Subjective; Referred to as "pure hear, empty hand" test; Not reasonable person standard |
| Holders In Due Course- Due course; Good faith: Reasonable commercial standards of fair dealing | Objective; Actor must proceed fairly in light of facts and commercial standards; Standard different from ordinary care |
| Holders In Due Course- Due course; Good faith: Notice to purchaser | Holder must purchase instrument w/o notice of number of things |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? Actual knowledge and reason to know | Notice includes both actual knowledge (subjective) and reason to know from facts surrounding transaction (objective) |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? Facts constituting notice- Instrument overdue | Purchaser has notice instrument is overdue if reason to know any of following- 1. Any part of principal overdue, 2. Acceleration made, 3. Demand made or more than reasonable time elapsed after issue (check overdue 90 days after date and stale) |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? Facts constituting notice- Notice of unauthorized signatures or alteration | ... |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? Facts constituting notice- Claims to instrument | Claim is defense to obligation of payment; Holder cannot have notice another has property or possessory right in instrument or proceeds or negotiation is rescindable |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? Facts constituting notice- Claims to instrument | Knowledge of breach of fiduciary duty |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? Facts constituting notice- Defenses or claim in recoupment | ... |
| Holders In Due Course- Due course; Good faith: Notice to purchaser, What constitutes notice? When and how notice must be received | To be effective, notice must be received at such time and in such manner as to give a reasonable opportunity to act on it |
| Holders In Due Course- Due course; Good faith: Transactions precluding HDC status | Holder not HDC of instrustment taken by- 1. Legal process or purchase at creditor's sale, 2. Acquiring it as successor in interest to an estate or other org., 3. Purchasing as part of bulk transaction no in regular course of business of transferor |
| Holders In Due Course- Due course; Good faith: Time at which HDC status determined | Issue determined at moment the instrument negotiated to hold and gives value; If transferee of negotiable instrument acquires notice of claim/defense to instrument prior to negotiation or giving value, transferee not qualify as HDC |
| Holders In Due Course- Due course; Good faith: Successors to HDC, Shelter rule- Transferee acquires transferor's rights | Transferee acquires transferor rights; Transferee takes "shelter" in status of transferor; Subject to fraud/illegality exception allows transferee become HDC if transferor formerly held isntrmt & obtain rights, even if fail requirement of due course hol |
| Holders In Due Course- Due course; Good faith: Successors to HDC, Shelter rule- Protects free negotiability of commercial paper | Once instrmt in hands of HDC, defenses could not be asserted against transferee; Otherwise, obloigor could restricts HDC's market interfering with free passage of commercial paper |
| Holders In Due Course- Due course; Good faith: Exceptions to Shelter rule | Never grants HDC rights to person who were parties to fraud or illegality affecting instrument |
| Holders In Due Course- Due course; Good faith: HDC rights and remote transferees | Once person qualified as HDC, all subsequent transferees will acquire same HDC rights no matter how far down chain of transferees they may be unless transferees after holder failed to obtain HDC rights b/c party to fraud or illegality affecting instrument |
| Claims and Defenses on Negotiable Instruments- Real Defenses | May be asserted against both HDC and non-HDC transferees of instrument in question; Other defenses cannot be asserted against HDC |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Forgery | Name of payee or special indorsee unauthorized, no subsequent take can be an HDC b/c no one can obtain right to enforce necessary to qualify as holder |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Fraud in the factum (Real fraud) | Assertable against HDc and is "fraud that induced obligor to sign instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms" |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Alteration of instrument | . |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Incapacity to K | Before incapacity will constituted real defense, state law must render K void from its inception, rather than merely voidable |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Infancy | Real defense if would be a defense under state law in simple K action |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Illegality | If some illegality in underlying transaction render obligation void, real defense even if HDC had nothing to do with illegality |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Duress | Duress occurs in K situation where one party acts involuntarily; Sometimes real and personal; Article 3 provides duress is matter of degree; Real defense if state law would render K void, but not if merely voidable |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Discharge in insolvency proceedings | Include an assignment for benefit of creditor, and any other proceeding intending to liquidate or rehabilitate estate of person involved |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Statute of limitations | If SOL has run on instrument, even an HDC cannot enforce instrument |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Statute of limitations: 3 years | Actions- 1. Unaccepted drafts must be brought after date of dishonor or w/in 10 days after date of draft (earlier); 2. Against acceptor of certified check brought after demand for payment; 3. Breach, conversion, enforce obligations brought after accrua |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Statute of limitations: 6 years | Actions- 1. Notes payable at definite time/demand after due date/demand, 2. Certificates of deposit after demand for payment made, but limitation period not commence before any stated due date |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Accommodation (suretyship) defenses | One who signs instrmt for incurring liability on instrmt w/o being direct beneficiary; If HDC knowledge of accommodation, take subject to defense caused by- 1. Extension of due date, 2. Material modification of obligation, 3. Impairment of collateral |
| Claims and Defenses on Negotiable Instruments- Real Defenses; Discharges known to HDC | HDC has notice of discharge when takes HDC status; Discharge: discharging event including in Article 3 and any other act would discharge an obligation to pay money under simple K |
| Claims and Defenses on Negotiable Instruments- Personal defenses | Cannot be asserted against one having rights of HDC, any may be viewed as all defenses other than real defenses; Include ever defense available in simple K actions |
| Claims and Defenses on Negotiable Instruments- Personal defenses; Consideration and negotiable instruments | Negotiable instrument must be supported by sufficient consideration; Existence of consideration not technically prerequisite to negotiability; Rather, its absence is valid defense to an instrument in hands of anyone other than HDc |
| Claims and Defenses on Negotiable Instruments- Personal defenses; Claims or defenses of another | Must rely on one's own defense |
| Liability of Parties- Parties who may be liable on an instrument; Maker of note, issuer of cashier's check | Merely by signing name obligated to pay instrument according to terms at time it was issued; Or if not issued, at time it first came into possession of holder |
| Liability of Parties- Parties who may be liable on an instrument; Indorser: Secondary liability, Indorser | Indorser: Person who signs name other than as maker, drawer, or acceptor, usually on back of instrument, for purpose either of negotiating instrument, restricting payment, or incurring indorser's liability on instrument |
| Liability of Parties- Parties who may be liable on an instrument; Indorser: Secondary liability, Indorser secondarily liable | Person entitled to enforce instrument looks to maker or drawee first for payment, and look to indorser for payment only if maker or drawee does not pay |
| Liability of Parties- Parties who may be liable on an instrument; Indorser: Secondary liability, Indorse liable for basic obligation- Indorser's K | Oblgation sign name- 1. Presentment, 2. Dishonor, 3. Notice of dishonor, 4. Multiple indorser (all severally liable full amt, order names appear) |
| Liability of Parties- Parties who may be liable on an instrument; Indorser: Secondary liability, Indorse liable for basic obligation- Warranty liability of indorser | Indorser transfers instrument for consideration, the indorser becomes trnasferor and can be liable for transfer warranties |
| Liability of Parties- Parties who may be liable on an instrument; Transferor: Five transfer warranties | When person transfer instrmt or customer/bank transfers item, for consideration transferor makes warranties- 1. Entitle to enforce, 2. Signature are authentic & authorized, 3. No alteration, 4. No defenses, 5. No knoweldge of insolvency proceeding |
| Liability of Parties- Parties who may be liable on an instrument; Transferor: Made to immediate transferee | If transfer not by indorsement, warranties run only to immediate transferee; But if, transferor indorses, warranties run to all subsequent transferees |
| Liability of Parties- Parties who may be liable on an instrument; Transferor: Presentment and notice of dishonor not needed | Presentment, notice of dishonor, etc. are irrelavnt to warranty liability |
| Liability of Parties- Parties who may be liable on an instrument; Drawer | If draft dishonored, drawer of draft obligated to pay draft according to its terms when drawer signed instrmt; Secondarily liable |
| Liability of Parties- Parties who may be liable on an instrument; Drawer: Drafts accepted by bank-drawer discharge | If draft been accepted by bank, the drawer is discharged from obligation on draft regardless of when draw accepted or by whom acceptance obtained |
| Liability of Parties- Parties who may be liable on an instrument; Drawee: In general | When drawee does sign, it becomes acceptor |
| Liability of Parties- Parties who may be liable on an instrument; Drawee: Rights and duties of parties | When bank is drawee, bank may well be liable to customers for failure to accept draft; B/c contractual relationship b/w bank and customer |
| Liability of Parties- Parties who may be liable on an instrument; Subrogation | Bank pays check then subrogated to rights of person its pays against customer |
| Liability of Parties- Parties who may be liable on an instrument; Subrogation:b Requirement of reasonable notice for stop payment order | Written stop payment order binding on bank 6 mos, but oral stop payment order lapse after 14 days if not confirmed in writing; If bank pays over valid stop payment, not honored orders of customer & cannot charge acct; Bank given reasoanble time to act |
| Liability of Parties- Parties who may be liable on an instrument; Acceptor | Acceptance is process whereby acceptor signs a draft and thereby becomes primarily bound to pay instrument |
| Liability of Parties- Parties who may be liable on an instrument; Acceptor: Certification of check | Certification of check is equivalent of acceptance |
| Liability of Parties- Parties who may be liable on an instrument; Accommodation parties | One who signs instrument for purpose of lending name and credit to another party to instrument and who does not directly benefit from value give; In essence of surety |
| Liability of Parties- Parties who may be liable on an instrument; Accommodation parties: Liability | Liable on instrument in capacity in which she signed, even where taker is aware of accommodation |
| Liability of Parties- Parties who may be liable on an instrument; Accommodation parties: Liability, Recovery from party accommodated | Accommodation party who pays instrument will have an action instrument against party accommodated, irrespective of formal positions on instrument |
| Liability of Parties- Parties who may be liable on an instrument; Accommodation parties: Liability, Subrogation | An accommodation party who pays instrument is subrogated to rights of party paid, including any right to collateral |
| Liability of Parties- Effect of persons signing jointly | If parties to instrmt sign jointly, have joint and several liability, so either/both can be sued for entire amt; Right to contribution; Release of one party by third party does not affect right to contribution |
| Liability of Parties- Effect of persons signing jointly; Liability of represented person (principal) | Agency law applies |
| Liability of Parties- Effect of persons signing jointly; Liability of represented person (priability of Parties- Effect of persons signing jointly; Liability of represented person (principal): When principal liable despite agent's authority, incipal | Principal liable if agent authorized |
| Liability of Parties- Effect of persons signing jointly; Liability of represented person (principal): When principal liable despite agent's authority, Ratification | Occurs when principal knowingly adopts signature of his own, or when with full knowledge of circumstances, appropriates the benefit of unauthorized signing or fails to deny validity of signature, knowing silence may mislead others |
| Liability of Parties- Effect of persons signing jointly; Liability of represented person (principal): When principal liable despite agent's authority, Estoppel | Principal can be precluded from denying authority if by his negligence he contributed to making of unauthorized signature |
| Liability of Parties- Effect of unauthorized signatures; G/R | Unauthorized signature is wholly ineffective as signature of person whose name is signed but is effect as signature of signer; Unauthorized signer assume obligations on isntrmt to those who in good faith gave value |
| Liability of Parties- Effect of unauthorized signatures; 5 circumstances forgery/unauthorized signature validated: Person whose name is used has done something to preclude her from raising issue- | 1. Fictituous payee, 2. Fraudulent indorsements by employees, 3. Failure to exercise ordinary care (Negligency rule: Failure= substantially contributes so precluded), 4. Bank statement rule, 5. Estoppel by certification |
| Liability of Parties- Effect of alteration and incomplete instruments | Alteration is unauthorized change in instrument that purports to modify obligation of any party in any respect; Effect of alteration depends on whether alterer's intent was fraudulent or non-fraudulent |
| Liability of Parties- Effect of alteration and incomplete instruments; Non-fraudulent alternation | Do not discharge any party, and instrument may be enforced according to original terms |
| Liability of Parties- Effect of alteration and incomplete instruments; Fraudulent alteration | Effect of discharging every party obligated on instrmt unless party assents to or is precluded from asserting alteration |
| Payment- G/R; Payment is final | Payment of negotiable instrmt to HDC or one who in good fath changed position in relaince on payment is final |
| Payment- G/R; Payment is final: Exceptions | Payor can recover from party paid if- 1. Party neither took for value nor in good faith, nor detrimentally relied on payment, or 2. Party paid breached transfer warranty or presentment warranty |
| Payment- Presentment warranties; Presentment warranties on unaccepted drafts | 1. Entitled to enforce, 2. Instrument not altered, 3. No knowledge that drawer's signature is authorized |
| Payment- Presentment warranties; Presentment warranties on other instruments | If any instrmt other than unaccepted draft presented to any party obligated to pay and instrmt is paid, party receiving payment and prior transferors warrant that they were parties entitled to enforce it or were representative of one so entitled |
| Payment- Presentment warranties; Presentment warranties on other instruments: Other transfer warranties | Inapplicable since obligated party, should know whether signature forged or whether instrument altered |
| Payment- Presentment warranties; Who makes warranties? | Made by- 1. Any person who obtains payment or acceptance, and 2. Any prior transferor; Similar but not identical to transfer warranties made by indorser |
| Payment- Presentment warranties; To whom are they made? | Presentment warranties are made to any person who in good faith pays or accepts |
| Discharge- Tenders "in full satisfaction"; Accord and satisfaction | If claim unliquidated or subject to dispute, claim discharged in full if person in good faith tenders instrmt that conspicuously states tendered in full satisfaction of claim and claimant obtains payment of instrmt; |
| Discharge- Tenders "in full satisfaction"; Accord and satisfaction: Claimant organization | It can, by notice sent before instrmt tendered, require such instrmts be tendered to designate person, office, or place to be effective |
Created by:
dmoore147
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