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1、Chapter two Instruments of international settlement2.1 An Overview of Negotiable Instruments2.2 Bill of Exchange/Draft2.3 Promissory Note2.4 Check国际结算CH2Instrum2.1.1 What is a negotiable instrument? 2.1.2 Chief features of negotiable instruments2.1.3 Parties to a negotiable instrument2.1 An Overview
2、 of Negotiable Instruments国际结算CH2Instruma negotiable instrument is a an unconditional promise or order to pay an amount of money that is easily transferable from one person to another. 2.1.1 Definition of negotiable instruments 国际结算CH2InstrumNegotiability 1) negotiation can be effected only by deliv
3、ery or endorsement and delivery. 2) negotiation gives the transferee a right of action in his own name against the original promisor or acceptor Requisite in form 3) the transferee in good faith and for value can acquire a better title than that held by all his prior parties. Non-causativeRequisite
4、in form 2.1.2 Features of negotiable instruments国际结算CH2InstrumFunctions of negotiable instrumentsSeller draw a draft and ask buyer to pay against itBuyeras a means of paymentBuyer Make a tenor note toSelleras a credit instrumentSellerBuyerSell goods and draw a bill asking to paypayee of bill is sell
5、ers creditor Local bankendorse and transfer(sell) the bill toForeign bankpresent for paymentas negotiable instrument国际结算CH2Instrum1) 出票人出票人drawer 2) 付款人付款人payer/drawee 3) 收款人收款人payee4) 承兑人承兑人acceptor 5) 背书人背书人endorser6) 被背书人被背书人 endorsee 7) 参加承兑人参加承兑人acceptor for honor8) 保证人保证人guarantor9) 持票人持票人hold
6、er 2.1.3 Parties to a negotiable instrument国际结算CH2Instrum10) 正当持票人正当持票人/善意的持票人善意的持票人holder in due course/bona fide holder：The instrument should be complete and regular on its face;The instrument is before maturity and the holder did not notice its previous dishonor, if any;The holder took it in good
7、 faith and for value;The holder did not notice any infirmity in the instrument or defect in the title of the person negotiating it11) 付对价持票人付对价持票人holder for value :a person who possesses an instrument for which value has been given by himself or by some other person prior to him in forms of money, g
8、oods,or services.国际结算CH2InstrumHolder for valuedrawer1draftpayee2give it asa giftfriend3sell holder4presentdraweeholder for valueAs long as the draft is drawn for value the parties after payee are all holders in value5refuse6recourserecourse?7recourse国际结算CH2InstrumAcceptor for honourdrawer1time draf
9、tpayee2endorseholder3sell holder4Present for acceptancedrawee5refuse to accept6recourserecourseAcceptor forhonour7acceptHe might be payees creditor or parent company and wants to protect payees credit standing.国际结算CH2Instrumdrawer1draftpayee2endorseendorsee/endorser3endorseholder4present it for paym
10、entdraweeGuarantor Guarantee can take place on each party during the flow of draftand takes the guarantor same responsibility as the guaranteed.A guarantor may guarantee for国际结算CH2InstrumBritish law UK Bills of Exchange Act of 1882 US Uniform Commercial Code of 1952 French and German lawUniform law
11、for Bills of Exchange and Promissory Notes of Geneva of 1930 Uniform law for International Checks of 1931Negotiable Instrument Law of Peoples Republic of China Negotiable instrument laws国际结算CH2Instrum2.2.1 Definition of a bill of exchange 2.2.2 Contents of a bill of exchange2.2.3 Parties to a bill o
12、f exchange2.2.4 Classification of bills of exchange 2.2.5 Acts relating to a bill of exchange 2.2.6 The Roles and Advantages of a Bill of Exchange2.2 Bill of exchange国际结算CH2Instrumsection 3, bill of exchange act, 1882,UK A Bill of exchange is an unconditional order in writing, addressed by one perso
13、n to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or the order of a specified person or to bearer. 2.2.1 Definition国际结算CH2InstrumExchange for US $ 35,000.00 Shanghai, April 2
14、, 2007At 60 days sight, pay to the order the Bank of ChinaThe sum of US Dollars Thirty-five Thousand only.Value receivedTo: The CitibankNew York, U.S.A. For: China National Chemicals Import & Export Corporation, S.B. Signature manager国际结算CH2InstrumRequisite itemsRelatively necessary itemsItems at wi
15、ll2.2.2 Contents of a bill of exchange国际结算CH2Instrum2.2.3 Parties to a bill of exchange (1) The drawer (2) The drawee (3) The payee (4) Acceptor (5) Endorser (6) Endorsee (7) Holder (8) Discounter (9) Guarantor 国际结算CH2InstrumHolder for value is the holder of a bill for which value has been given eit
16、her by himself or by his prior parties; enjoys the same rights but is subject to the same defects in title, if any, of the transferor. Holder in due course refers to a person who obtains the instrument through giving the value by himself; his rights over the bill will not be affected by the title de
17、fects of his direct prior party. Holder国际结算CH2InstrumACDEBDrew a draft on BEndorsed and lost itPicked it up and transferred it to E for valueAccepted the draftFGave it as a present国际结算CH2InstrumAccording to the tenor Demand draft/ sight draft Time/ usance draft1)Payable at a fixed time after sight (
18、 the accepting date) 2)Payable at a fixed time after date ( the issuing date)3)Payable at a fixed future date/deferred payment bill e.g. “at a fixed time after a B/L date” How to calculate the due date 2.2.4 Classification of a bill of exchange国际结算CH2Instrum2.2.4 Classification of a bill of exchange
19、According to whether commercial documents are attached thereto clean draft; documentary draftAccording to the drawer Bankers draft; traders draftAccording to the acceptor: Bankers acceptance; traders acceptance国际结算CH2Instrum国际结算CH2Instrum国际结算CH2Instrum国际结算CH2Instrum国际结算CH2Instrum2.2.4 Classification
20、 of a bill of exchangeAccommodation (Finance) bill of exchange a bill of exchange that is signed by someone (the accommodation party) who promises to pay it to help another person to raise money, i.e., the accommodation party lends his name (by accepting the draft) to somebody else (the drawer of an
21、 accommodation draft) for the latter to raise money; used for straight borrowing/financing transactions in which there are no related transactions 国际结算CH2Instrum出票（出票（Issue）背书（背书（Endorsement）提示（提示（Presentation）承兑（承兑（Acceptance）付款（付款（Payment）保证（保证（Guarantee or Aval）拒付（拒付（Dishonor）追索（追索（Recourse）贴现（贴现
22、（Discounting)2.2.5 Acts relating to a bill of exchange国际结算CH2Instrum国际结算CH2Instrum1.The issue of a draft A draft for USD 100,000.00 is drawn by The American Exporter Co.,Ltd, Tampa, Florida, U.S.A on the French Issuing Bank, Paris, France payable at 60 days after sight to the order of ourselves date
23、d 15 May., 2006 marked “Drawn under The French Issuing Bank,Paris, France L/C No.12345 dated 25 Feb., 2006.”2.A draft indicates that “at 10 days from 11 may, 2006 pay to the order of A company”, the maturity of the draft falls on _amount and net proceeds. Exercises国际结算CH2Instrum3.A draft is partly s
24、hown as follows: exchange for GBP12,500.00 New York, 23 May 2006 at 60 days after B/L date 23/ May/2006 pay to the order of ourselves the sum of US dollars one thousand only. Suppose the accepted draft was discounted on 23 may, 2006 by the collecting bank, Bank of Asia, London at the rate of 9% per
25、annum. Please calculate discount国际结算CH2Instrum1.Exchange forUSD100,000.00 Tempa, 15 May,2006 2. At 60 days after sight pay to the order of Ourselves the sum of US dollars one hundred thousand only. 3. “Drawn under The French Issuing Bank, Paris, France L/C No.12345 dated 25 Feb., 2006” 4. To The Fre
26、nch Issuing Bank. For The American Exporter Co.,5. Paris Ltd , Tempa 6. signature7. 2. When ISBP does not put into force, the maturity falls on 20 May,20068. when ISBP puts into force, the maturity falls on 21May,20063.Discount amount:1250060/365 9/100=184.934. Net Proceeds=12500-184.93国际结算CH2Instru
27、m2.3 Promissory note2.3.1 Definition of a promissory note2.3.2 Characteristics of a promissory note2.3.3 Contents of a promissory note2.3.4 Classification of promissory note2.3.5 Liabilities of the Parties 2.3.6 The difference between a bill and a note国际结算CH2Instrum2.3.1 Definition of a promissory n
28、oteUK Bills of Exchange Act of 1882, Article 83 A promissory note is an unconditional promise in writing made by one person to another, signed by the maker, engaging 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 beare
29、r. 国际结算CH2Instrum2.3.2 Characteristics of a promissory note(1) It is an unconditional promise in writing (2)The basic parties to a promissory note are the maker and the payee (3) There is no need to accept the instrument if it is payable at a fixed or determinable future time (4)Promissory notes can
30、 be made by commercial firms or bankers (5) Promissory notes other than those issued by bankers are not very widely used in modern commercial transactions 国际结算CH2Instrum2.3.3 Contents of a promissory noteThe word “promissory note”An unconditional promise to payStatus of the payeeSignature of the mak
31、erPlace and date of issueTenorA sum certain in moneyPlace of payment国际结算CH2Instrum2.3.4 Classification of Promissory NoteAccording to the tenorSight /Term promissory noteAccording to the makercommercial /bankers promissory note International Money OrderTreasury Bill国际结算CH2Instrum国际结算CH2Instrum2.3.5
32、Liabilities of the Parties(1) Makerthe principal debtor. Engaging to pay the promissory note within the tenor. (2 ) EndorserA promissory note can be endorsed in the same way as a bill of exchange or check. The endorser is liable to pay the promissory note or compensate the holder for non-payment pro
33、vided that the necessary proceedings in dishonor have been taken.国际结算CH2Instrum2.3.6 Differences between a bill and a noteBills of exchangePromissory notesAn order to pay.A promise to pay.A three-party instrument.A two-party instrument.Where payable after date, a bill is generally accepted.Never acc
34、epted.国际结算CH2InstrumBills of exchangePromissory notesWhere payable after sight, a bill must be presented for acceptance to fix the maturity date of the bill, and presentment for acceptance is necessary to render the prior parties liable.Never accepted. However, according to the Uniform Law for Bills
35、 of Exchange and Promissory Notes of Geneva of 1930, a note can be made payable after sight, and such a note must be presented for visa of the maker. The visa date is used to fix the maturity date of the note. 国际结算CH2InstrumBills of exchangePromissory notesCan be accepted for honour.Never accepted.C
36、an be drawn in a set.One copy.Foreign bills need protesting on dishonour to retain the liability of prior parties.Protest is never needed.国际结算CH2InstrumBills of exchangePromissory notesBefore acceptance, the drawer is primarily liable for payment, but after acceptance the acceptor becomes primarily
37、liable for payment.The maker is always the party liable primarily for payment.Where there are two or more acceptors of a bill, the acceptors are always jointly liable.Where there is more than one maker, they can be liable jointly or jointly and severally according to the terms of the note国际结算CH2Inst
38、rum2.4 Check2.4.1 Definition of a Check2.4.2 Contents of a Check2.4.3 Features of a check2.4.4 Parties to a check2.4.5 Classification of Check2.4.6 Check Clearing2.4.7 A Bankers Duty to Honor Checks2.4.8 Dishonor of Checks2.4.9 Difference between a Check and a Bill of Exchange国际结算CH2Instrum 出票人签发的，委
39、托办理支票存款业务的银出票人签发的，委托办理支票存款业务的银行或其他金融机构在见票时无条件支付确定金额给行或其他金融机构在见票时无条件支付确定金额给持票人或收款人的票据。持票人或收款人的票据。 A check is a bill of exchange drawn on a bank payable on demand; A check is an unconditional order in writing, signed by the person giving it, requiring the bank to whom it is addressed to pay on demand
40、a sum certain in money to, or to the order of , a specified person or to bearer. 2.4.1 Definition of a check国际结算CH2InstrumCheck for USD16000.0 New York, May 1,2007Pay to the order of John Smith the sum of sixteen thousand US Dollars only.To: Bank of China, Beijing China For China National Art & Craf
41、t Import & Export Corp. Signature 国际结算CH2Instrum国际结算CH2Instrum国际结算CH2Instrum国际结算CH2Instrum2.4.2 Contents of a Check (1) The word “check”(2) Unconditional(3) In writing(4) Drawers Signature(5) Place and date of issue.(6) Address of the paying bank.(7) A certain sum of money.(8) The name of the payer.
42、 国际结算CH2Instrum2.4.3 Features of a check(1) A check must be unconditional.(2) A check must be drawn on a bank.(3) A sum certain in money must be written on a check, which should be signed by the drawer.(4) The date of a check is not essential in that it can be antedated, post-dated or dated on a non
43、-business day.(5) The payee may be bearer, a specified person or his order.国际结算CH2Instrum2.4.4 Parties to a check(1) The drawer. The person who makes out the check and keeps an account current in the paying bank. (2) The drawee. The banker on whom the check is drawn and to whom the order to pay is g
44、iven. He is the banker with which the drawer maintains an account.(3) The collecting bank. The payees bank which collects/obtains payment for its customer from the paying bankthe drawers bank.(4) The paying bank where the drawer has an account国际结算CH2Instrum2.4.5 Classification of CheckUncrossed chec
45、k & Crossed check a crossing is in effect an instruction by the drawer or holder to the paying bank to pay the fund to bank only instead of over the counter of the paying bank国际结算CH2InstrumTravelers CheckCertified checksvA check is certified by the drawee bank. Once a check is certified by the drawe
46、e bank, all other obligors on the check will be discharged of the liability of the payment. 国际结算CH2Instrum2.4.6 Check Clearing-The payee should deposit the check into his bank before he can obtain payments expressed in the check. This process from depositing a check to obtaining payments is known as
47、 check clearing. Collecting bank Paying bankProcess of Check Clearing 国际结算CH2InstrumPayee Collecting Bank 2Paying Bank1543 Process of Check Clearing国际结算CH2Instrum2.4.7 A Bankers Duty to Honor ChecksThe bankers duty to honor the check ends: (1) On countermanding of payment by the customer (2) On rece
48、iving notice that the customer has died or dissolved;(3) On receiving notice of bankruptcy or liquidation of the customer;(4) On receiving order that is made against the customer;(5) On receiving notice of mental disorder of the customer;(6) On receiving a garnishee order against the customers accou
49、nt;(7) On receiving a court order freezing the customers account. 国际结算CH2Instrum2.4.8 Dishonor of Checks(1) When there is not enough money deposited in the drawers account.(2) When the check does not bear a date. A check without a date is valid all right, but the paying bank may return it unpaid by
50、marking it with “Date Required”.(3) When the check is post-dated. Banks will not pay any post-dated check before the due date because it is against the customers instruction if they do so.(4) When the check is out of date.(5) When the check bears alterations. If a check bears some material alteratio
51、ns without being accompanied by the drawers initials or his signatures, this check will be dishonored by the bank.(6) When check is mutilated and torn. 国际结算CH2Instrum2.4.9 Difference between a Check and a Bill of Exchange ChequesBills of exchangeThe drawer is the customer of the drawee bank.No speci
52、fic requirement, i.e. , the drawer can be a trader or a bank.The drawee must be the bank with which the drawer opens a checking account.No specific requirement, i.e. , the drawee can be a trader or a bank.A payment can be certified.Both a payment instrument and a credit instrument.国际结算CH2InstrumCheq
53、uesBills of exchangein the case of a certified cheque, the bank that has certified the cheque becomes the principal obligor and all other parties are discharged of liability.In the case of a sight bill, or a usance bill before acceptance, the drawer is the principal obligor; in the case of an accept
54、ed bill, the acceptor is the principal obligor.国际结算CH2InstrumChequesBills of exchangeA cheque can be certified.A bill can be accepted, guaranteed or accepted for honour.A cheque can be cancelled before payment.After acceptance, the payment is irrevocable.A cheque is payable on demand.A bill is payab
55、le on demand or at a determinable future time.国际结算CH2InstrumvThe word “exchange”vAn unconditional order to pay “Pay to the order of the Bank China the sum of thirty-five thousand US dollars.” is a valid bill of exchange.“Pay to the order of the Bank China the sum of thirty-five thousand US dollars w
56、hen the ship Dongfeng reaches the port of New York.” “We would be delighted if you would pay to the order of the Bank China the sum of thirty-five thousand US dollars.” Requisite items( (一一) )国际结算CH2InstrumvA fixed amount of money1)Payable at a fixed amount 2)Payable with interest interest rate shou
57、ld be specified to make the amount certain. e.g. “payable at USD three hundred plus interest at 5% p.a.” 3)Payable by installments installment must be clearly stated e.g. “At one month after date pay to the order of * the sum of two thousand US dollars by ten equal consecutive monthly installments”
58、4)Payable according to an indicated rate of exchange rate of exchange must be indicated 5) In money Requisite items(二二)国际结算CH2InstrumvName of the payee 1)Restricted Order a bill payable to a specified person only or to a specified person not negotiable/transferable e.g. “pay to *only”; “not transfer
59、able” 2)Demonstrative Order/indicative order a bill payable to a specified person or some other person designated by him e.g. “pay to the order of *”; “pay to * (or order)” 3) Bearer order any person holding a bearer order can request payment e.g. “pay to bearer”; not safe Requisite items(三三)国际结算CH2
60、InstrumvDate of issue to determine the expiry date and paying date; make sure whether the drawer has disposing capacity vName of drawee vThe signature of the drawer without the signature of the drawer or forged signature makes an instrument invalid. if an individual is signing for his company, these
61、 words “For”, “On behalf of”, “For and on behalf of” and “Per pro” should prefix the name of the company e.g. For ABC CO., London (Signature) John Smith, ManagerRequisite items(四四)国际结算CH2InstrumvPlace of issue vPlace of payment vTenor the time to effect payment; the due date or maturity dateindicate
62、d as “on demand or at a fixed or determinable future time”Relatively necessary items国际结算CH2Instrum BILL OF EXCHANGE Exchange for USD15,277.00 Shanghai MARCH 1 2005 (Date) At Sight of this FIRST of Exchange (Second of Exchange being unpaid) Pay to the order of BANK OF CHINA the sum of US DOLLARS FIFT
63、EEN THOUSAND TWO HUNDRED AND SEVENTY SEVEN ONLY Value received To: HABIB BANK LIMITED P.O.BOX 888， . DUBAI, U.A.E SHANGHAI TEXTILES COMPANY LIMITED 方方 之之 (Authorized Signature)国际结算CH2Instrum利息、利率及汇率利息、利率及汇率（interest ，interest and exchange rate）提示期限（提示期限（Limit of time for presentation）出票依据（出票依据（Drawn
64、 Clause）免作退票通知或放弃拒绝证书（免作退票通知或放弃拒绝证书（Notice of Dishonor Excused or Protest Waived） 付一不付二付一不付二预备付款人（预备付款人（Referee in case of need）Items at will国际结算CH2InstrumComprises : 1 1）to draw and sign a bill; 2 2）to deliver it to the payee According to the negotiable instrument law：The bill should be complete in
65、 form stipulated by the negotiable instrument law in the place of issue；By drawing a bill,the drawer engages that on due presentment the bill will be accepted and paid and that, if dishonored, he will compensate the holder。Issue payeepayerdrawer国际结算CH2InstrumThe payee or holder signs on the back of
66、the bill and delivers it to the endorseeEndorsementNotes:A valid endorsement should be an endorsement of the entire bill;By endorsing an instrument,the endorser guarantee that on due presentment the bill shall be accepted and paid as specified.国际结算CH2InstrumTypes ：1)Special endorsement 记名背书记名背书/特别背书
67、特别背书/正式背书正式背书/完完全背书全背书2) Pay to the order of E Co., New York(the endorsee)3) For A BC Co., New York (the endorser)Signature (of the endorser)2) Blank endorsement 空白背书空白背书 3) Restrictive endorsement 限制性背书限制性背书 Pay to A only/not transferable/not negotiable/pay to A bank for account of B Co.4) Endorsem
68、ent for collection 委托取款背书（托收背书）委托取款背书（托收背书） 5) Endorsement for pledge质押背书质押背书国际结算CH2Instrum endorseeendorser date AFirst endorsement C BSecond endorsement CThird endorsement E DFourth endorsement国际结算CH2InstrumTypespresentation for acceptance: a usance draft presentation for payment: a sight/ usance
69、draftOccasions on which bills must be presented for acceptance(1)Time bill after sight (2)Time bill after date (3)A time bill stipulates that it must be presented for acceptance (4)A time bill, payable at a place other than that of the drawee Presentation must be made within the reasonable time. Pre
70、sentation国际结算CH2InstrumThe drawee sign on the face of bill, and deliver it to the person presenting for acceptance, by which the drawee shows his assent to the order of drawerForms ： the word “accepted”; date; signature of the draweeTypes ： general acceptance: without any qualification qualified acc
71、eptance: 1) a conditional acceptance e.g. accepted payable providing goods in order; accepted payable at some place (local acceptance); payable at a longer time after date 2) partial acceptance 3) Local acceptance 4) Time acceptance Acceptance国际结算CH2Instrum This act is usually performed by a third p
72、arty called guarantor, who engages to pay on presentment for a sight bill and accept and pay at maturity for a time bill.Guarantee Notes: 1）the guarantor stands for a debtor such as drawer, endorser,or acceptor and assumes his indebtedness to the holder2）when the guarantor is compelled to pay, his r
73、ight of recourse arises against the guaranteed and all the prior parties of the guaranteed.国际结算CH2Instrum“Honor” the process in which the drawee effects payment or acceptance when a bill is presented to him for payment or for acceptance. Notice of Dishonor an advising act taken by the holder to all
74、endorsers about the dishonor in writing or in words Honor and dishonor 国际结算CH2InstrumIn the event of a draft being dishonored, the holder in due course can sue every person who signed the draft prior to him. Qualifications to exert and preserve the right of recourse:vCompleteness in form of the draf
75、tvPresenting for acceptance and payment on the due timevNotice of dishonor拒付通知拒付通知vProtest拒绝证书拒绝证书 图示图示 If any party in the chain writes “without recourse” on the draft when the draft is transferred to him, he is discharged from the liability and the party concerned has no right of recourse against
76、him. Recourse 国际结算CH2Instrum a formal legal procedure, which goes some way towards protecting the sellers rights: After a bill is dishonored and a notice of dishonor is given, the holder may hand the bill again to a notary party who will present it again to the drawee so as to obtain a legal proof o
77、f the act of dishonor. If it is dishonored again, the notary party then will draw a protest (which is an official certificate that evidences the dishonor and states why the protest is made) and return it to the holder together with the bill, against which the holder may exercise his right of recours
78、e against the prior parties.Protest 国际结算CH2InstrumDrawer APayee Bgive the noticeEndorsers C,D,E, each gives notice in turnHolder Fgives the noticeAcceptor Hdishonors the bill国际结算CH2InstrumDiscounting is to sell a time bill already accepted by the drawee but not yet fallen due to a financial institut
79、ion at a price less than its face value.Calculating formula： D=Vtd/360 N= V- D D:discount interest V:face value t:tenor d:discounting rate(n% p.a.) N:net proceeds Creditworthiness:Standing of the drawer and the accepterDrawn clause showing the reason for issuing the draft Discounting of bills of exchange国际结算CH2Instrum
