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May 23, 2007 n^o. 493 - Vol. 5
 

"The problem with beauty is that it's like being born rich and getting poorer."

Joan Collins

In today's Grammatigalhas: dealing with commercial paper, here is an introduction to negotiable instruments.

• Top News

Brazilian energy minister resigns

Brazil's energy minister has tendered his resignation amid allegations of corruption over a public works project. Silas Rondeau is the latest public figure in Brazil to come under the spotlight as part of a wide-ranging investigation into corruption. Rondeau, who denies any wrongdoing, is the most prominent figure yet to be connected to the scandal. The move comes shortly after he held talks about the affair with Lula. Last week, a police investigation, called "Operation Navalha" - or Straight Razor - has focused on claims of fraud involving public works, including the building of bridges in isolated areas that were never completed and led to the arrest of  almost 50 people, including a senior aide to Rondeau, on suspicion of taking money from government contracts.

US Democrats drop Iraq pull-out plan

Democrat congressional leaders have abandoned plans to tie support for a $100bn war funding bill to a timetable for troop withdrawal from Iraq. The decision followed weeks of wrangling over the bill which the US president threatened to veto. Denying the move was a White House victory, Democrats said the bill would include extra funds for domestic use. It came as declassified documents showed Osama bin Laden asked the head of al-Qaeda in Iraq to target the US.

High Court Raises Bar On Antitrust Lawsuits

Aiming to rein in the high cost of antitrust litigation, the Supreme Court toughened the standards for plaintiffs to get into court. The justices, in a 7-2 opinion, ruled that an allegation that two or more companies are acting in parallel isn't enough for an antitrust lawsuit to proceed. Even if the result benefited the companies and diminished competition, the plaintiffs must go further and include some allegation indicating that the companies were actively working together. When independent self-interest also could explain the conduct, plaintiffs must allege "some factual context suggesting agreement" to restrain trade. But in throwing out the suit alleging that major telecom companies conspired to restrain trade, the court noted that the plaintiffs failed only because they "have not nudged their claims across the line from conceivable to plausible." The ruling doesn't radically upend the rules for antitrust actions. Nevertheless, it marks the latest in a sequence of cases where the court has tightened the scope of the Sherman Antitrust Act, the 1890 statute that took aim at monopoly by outlawing any "contract, combination ... or conspiracy in restraint of trade or commerce." Business interests contend that many companies are forced to settle even meritless lawsuits, because the cost of discovery may dwarf a payment that would make the case go away. But the court was vague about what it had in mind as the minimum allegation for a suit to proceed.

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• MiMIC Journal

China's child fines 'spark riot'

Thousands of villagers have rioted in south-western China over the country's controversial family planning restrictions. The villagers, in Guangxi province, reportedly attacked government offices after officials imposed heavy fines on families who had too many children. Beijing allows urban dwellers to have one child, while villagers can have two if the first child is a girl. The policy - which was launched in the 1970s - is aimed at controlling population growth in the world's biggest nation with some 1.3 billion people.

• Grammatigalhas

Legal Meaning Is Not Everyday Meaning

Negotiable Instrument

A promise to pay money, transferable from one person to another. For example: Abel gave Baker a negotiable instrument that contained a promise to pay $1,000 on July 22 of this year. Baker sold the note for $900 cash to Collins by endorsing and delivering it. Collins became a Holder in Due Course.

Secured transaction

A security interest arises when in exchange for a loan a borrower agrees, in a security agreement, that the lender (the secured party) may take specified collateral owned by the borrower if he or she should default on the loan. A security interest also provides the secured party with the assurance that if the debtor should go bankrupt he or she may be able to recover the value of the loan by taking possession of the specified collateral instead of receiving only a portion

Everyday "Legal" Jargon

Negotiable instruments

At common law, the assignee of a right to payment under a contract takes subject to claims and defenses arising under the contract that the obligor can assert against the assignor/obligee, unless the contract includes a clause pursuant to which the obligor agrees not to assert claims and defenses against an assignee.  In other words, absent an agreement between obligor and obligee to the contrary, the assignee stands in the shoes of the assignor.

A negotiable instrument is a

1. written instrument,

2. signed by the maker or drawer of the instrument,

3. that contains an unconditional promise or order to pay

4. a fixed amount of money (with or without interest in a specified amount or at a specified rate)

5. on demand or at an exact future time

6. to a specific person, or to order, or to its bearer.

Negotiable instruments are mainly governed by state statutory law. Every state has adopted Article 3 of the Uniform Commercial Code, with some modifications, as the law governing negotiable instruments. The UCC defines a negotiable instrument as an unconditioned writing that promises or orders the payment of a fixed amount of money.

A negotiable promissory note, like other types of negotiable instruments, confers on some of its potential holders greater rights than are conferred on assignees of contracts that are not negotiable instruments.

Example 1:  A manufacturer of pens sells its pens to a chain of retail stationery stores on trade credit. In need of immediate cash, the manufacturer assigns its receivables, including its right to receive payment from the chain of retail stationery stores, to a financial institution at a discount. Using contract vocabulary, we would call the chain of retail stationery stores the obligor (or promisor), we would call the manufacturer an obligee (or promisee) in its relationship to the obligor and an assignor in its relationship to the financial institution. We would call the financial institution an assignee.  Under UCC Article 9 the receivables are collateral (whether the assignment is a sale or an assignment for purposes of security).  Using Article 9 vocabulary, we would call the chain of retail stationery stores an account debtor, we would call the manufacturer the debtor, and we would call the financial institution the secured party.

Suppose some or all of the pens prove defective such that the chain of stationery stores has a defense to payment against the manufacturer. Absent a "waiver of defenses" clause in the contract between the manufacturer and the chain of stationery stores, contract law tells us that the chain of stationery stores may assert this defense to payment against the financial institution to whom the receivable has been assigned.  The contract of assignment may, in turn, afford the financial institution a right to charge back such a receivable to the manufacturer or charge it against a reserve withheld from the price that the financial institution paid for the assignment.

Example 2:  The same manufacturer of pens sells an expensive piece of its used equipment to another manufacturer for $50,000, $10,000 payable upon delivery and the balance payable, with interest, over 5 years. The buyer executes a promissory note for that balance in favor of the manufacturer. To raise immediate cash, the manufacturer assigns the note to a financial institution (called negotiating the note), by indorsing and delivering the note to the financial institution (in the same way you would indorse and deliver a check made payable to your order to the bank in which you hold a checking account). Using the vocabulary of negotiable instruments, we would call the buyer a maker of the note, the manufacturer a payee of the note in its relationship with the buyer and the endorser of the note in its relationship with the financial institution, and we would call the financial institution a holder of the note.  Under Article 9 the promissory note is collateral.  As an aside, note that Article 9 excludes from coverage the assignment of a promissory note (or other receivables) in some other types of cases. Using Article 9 vocabulary we would call the manufacturer of pens a debtor and the financial institution a secured party, but we would not call the maker of the promissory note an account debtor.

Suppose the equipment sold proves defective such that the buyer may assert a defense to payment against the manufacturer. Under defined circumstances (including that the financial institution had no reason to know of the defect in the equipment), the financial institution would be called a holder in due course of the note and would take free of the defense, i.e. could insist upon payment of the note from the buyer notwithstanding the defense. Of course the buyer could pursue remedies against the manufacturer, but those remedies may prove illusory if the manufacturer is in financial difficulty, has filed bankruptcy, or has gone out of business.

The same principles would apply to the use of a promissory note in a real estate transaction. Suppose a buyer of real property executes a promissory note in favor of a lender. The lender negotiates the note to a third party. If the third party qualifies as a holder in due course of the note it will take free of any defense to payment that the buyer of the real property may have against the seller.

The rule of derivative title, which is applicable in most areas of the law, does not allow a property owner to transfer rights in a piece of property greater than his own. If an instrument is negotiable this rule is suspended. A good faith purchaser, who does not have any knowledge of a defect in the title or claims against it, takes title to the instrument free of any defects or claims. In relation to the suspension of the rule of derivative title, Article 3 provides for warranties to protect the parties in transactions involving negotiable instruments.

To confer the advantages of negotiability, the promissory note must assume a specific form. The maker of the note must promise to pay a fixed sum of money, the promise must be unconditional, the note must be payable either to "bearer" or to the order of an identified person or entity, the note must be payable on demand or at a definite time, and, with a few exceptions, the note may not state any promise by the maker other than the promise to pay. Terms which we describe in our Commentary. Common terms in consensual payment obligations do not render a note non-negotiable. For example, a note is payable at a definite time notwithstanding a provision calling for acceleration; a note calling for payment of attorney's fees if collection activity is required is permitted because the promise to pay a fixed some of money may be accompanied by a promise to pay "other charges".

In a wide variety of circumstances, state common law, state legislation, or federal regulation either prohibit the use of a promissory note or deny holder in due course status, and its attendant advantages, to the holders of notes made by individuals who have acquired goods or services, on credit, for personal, family, or household purposes   By doing so, the right of the consumer purchaser to assert defenses against the assignee - the baseline contract rule -  is preserved.

Checks are negotiable instruments but are mainly covered by Article 4 of the UCC. See also Banking Law. Secured transactions may contain negotiable instruments but are predominantly covered by Article 9 of the UCC. See also Secured Transactions. If there is a conflict between the Articles of the UCC both Article 4 and 9 govern over Article 3.

The United Nations Convention on International Bills of Exchange and International Promissory Notes would preempt Article 3 in the case of international transactions if the United States were to join.

Types of negotiable instruments

Draft: An unconditional order to pay (e.g., a check) by which the party creating the draft (the drawer) orders another party (the drawee), typically a bank, to pay money to a third party (the payee).

Time Draft: A draft payable at a time certain.

Sight Draft: A draft payable on presentment.

Trade Acceptance: A draft that is drawn by a seller of goods ordering the buyer to pay a specified sum of money to the seller, usually at a specified future time.  The buyer accepts the draft by signing and returning it to the seller.

Promissory Note: A written promise made by one person (the maker) to pay a fixed sum of money to another person (the payee) on demand or at a specified future time.

Certificate of Deposit: A note by which a bank or similar financial institution acknowledges the receipt of money from a party and promises to repay the money, plus interest, to the party or the party’s designee, on a certain date.

Negotiability: writing & signature

Written Form: A negotiable instrument must be

• written on material that lends itself to permanence, and

• portable.

Signature: Any symbol

• made manually or by means of a device or machine,

• using any name, including a trade or assumed name, word, mark, or symbol

• executed or adopted by the signer with a present intention to authenticate a writing.

A negotiable instrument must be signed by

• the maker, or her authorized agent, if the instrument is a note or a certificate of deposit, or

• the drawer, or his authorized agent, if the instrument is a draft or a check.

Negotiability: unconditionality

Promise or Order: A negotiable instrument must contain an express order or promise to pay.

A mere acknowledgment of a debt is not sufficient without evidence of an affirmative undertaking on the part of the debtor to repay the debt.

The exception to this rule is a certificate of deposit.

Unconditionality of Promise or Order: A promise or order is conditional (and, therefore, not negotiable) if it states

• an express condition to payment,

• that the promise or order is subject to or governed by another writing, or

• that the rights or obligations with respect to the promise or order are stated in another writing.

Negotiability: fixed amount

Fixed Amount: An amount ascertainable from the face of the instrument – with or without reference to some outside source of information identified on the face of the instrument.

Payable in Money: The amount due under the instrument must be payable in “a medium of exchange authorized or adopted by a domestic or foreign government as part of its currency.”

Negotiability: time for payment

Payment on Demand: An instrument is payable on demand, "at sight," or "upon presentment" if it is subject to payment immediately upon being presented to the payor or drawee.

If no time for payment is specified, a negotiable instrument is presumed to be payable on demand.

Payment at a Definite Time: An instrument is payable at a definite time if it states that it is payable (1) on a specified date, (2) within a definite period of time, or (3) on a date or at a time readily ascertainable at the time the promise or order is made.

Such instruments are frequently referred to as time instruments.

Acceleration Clause: A clause that permits a payee or other holder of a time instrument to demand payment of the entire amount or balance due, with interest, if a certain event occurs, such as default in the payment of an installment when due.

Extension Clause: A clause in a time instrument that permits the date of maturity to be extended.

Negotiability: payment to whom

Order Instrument: A negotiable instrument that is payable "to the order of" an identified payee (e.g., "Pay to the Order of Joan Ebert") or "to" an identifiable person "or order" (e.g., "Pay to Joan Ebert or Order").

Bearer Instrument: A negotiable instrument payable “to bearer” or to “cash,” rather than to an identifiable payee.

Bearer: The person possessing a bearer instrument.

Any instrument payable to the following is a bearer instrument:

• "Payable to the order of bearer";

• "Payable to Jane Smith or bearer";

• "Payable to bearer";

• "Pay cash"; or

• "Pay to the order of cash."

Factors not affecting negotiability

The fact that an instrument is undated does not affect its negotiability, unless the date of the instrument is necessary to understand the payment term;

Postdating or antedating an instrument does not affect its negotiability;

Interlineation and other written or typewritten alterations need not affect negotiability;

Handwritten terms "trump" typewritten terms, and typewritten terms "trump" printed terms.

Words "trump" figures, unless the words are ambiguous in and of themselves; and

If the instrument fails to specific the applicable interest rate, the judgment rate of interest (defined by statute) becomes the interest rate on the instrument.

Notations that an instrument is "nonnegotiable" or "not governed by Article 3" do not affect the negotiability of a check but may make other instruments nonnegotiable.

As If Your Life Depended On It ... or How to get to Carnegie Hall? - Practice, practice

Blow one's own trumpet

Because of its penetrating sound, the trumpet has been used from ancient times to send signals (especially military ones), express celebration or draw attention to something. The arrival of an important person may even today be proclaimed by a fanfare of trumpets. In contrast, a person who has to blow his own trumpet lacks modesty and invites derision.

Colombia / Columbia

Although both are named after Columbus, the U.S. capital is the District of Columbia, whereas the South American country is Colombia.

Number of verb

In long, complicated sentences, people often lose track of whether the subject is singular or plural and use the wrong sort of verb. "The ultimate effect of all of these phone calls to the detectives were to make them suspicious of the callers" is an error because "effect," which is singular, is the subject. If you are uncertain about whether to go with singular or plural condense the sentence down to its skeleton: "The effect ... was to make them suspicious."

Another situation that creates confusion is the use of interjections like "along with," "as well as," and "together with," where they are often treated improperly as if they meant simply "and." "Aunt Hilda, as well as her pet dachshund, is coming to the party" (not "are coming").

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• Historia Verdadera

• Brief News

Protests mount over Venezuela TV

Staff and supporters of a Venezuelan TV station that is due to be taken off air have unveiled a kilometre-long banner in Caracas in support of press freedom.Protesters carried the banner, which read "S-O-S, freedom of expression" in 10 languages through the streets. Opposition-allied RCTV is due to have its license revoked on 27 May, being replaced by a state-sponsored station. Chavez has accused RCTV of plotting against him and supporting a coup attempt in 2002.

WHO reaches bird flu vaccine deal

The World Health Organisation says it has reached a framework agreement to ensure all countries share samples of the deadly H5N1 strain of bird flu. Indonesia and China have been reluctant to provide samples, fearing the vaccines produced may be too expensive. The agreement aims to ensure that an up-to-date vaccine can be produced and that affected countries can afford it.

Chile head pledges transport fix

Chilean President Michelle Bachelet has promised to fix the capital's transport system after months of mounting public anger at delays and cancellations. Bachelet accepted mistakes had been made in trying to upgrade Santiago's public transport and said she understood people's frustration.

UN troops 'traded gold for guns'

Pakistani UN peacekeeping troops have traded in gold and sold weapons to Congolese militia groups they were meant to disarm. These militia groups were guilty of some of the worst human rights abuses during the Democratic Republic of Congo's long civil war. The trading went on in 2005. A UN investigative team sent to gather evidence was obstructed and threatened. The team's report was buried by the UN itself to "avoid political fallout".

Paraguay and Brazil discuss measures to fight smuggling

No one checks passports  at the Friendship Bridge and anyone asking questions is hustled away in this smugglers' haven near the "Triple Border," where Paraguay, Brazil and Argentina meet -- and where contraband electronics, toys, drugs and arms flow across porous borders.  Duarte and Lula met in Asuncion on Monday and vowed to boost legitimate trade and to strengthen cross-border cooperation in fighting smuggling in the Triple Border. They also signed a pledge to build another bridge on the Parana River separating their countries. But neither broached one thorny issue: a wall Brazil had planned to build on its side of the Friendship Bridge. "Convergence, not divergence, is the solution to our problems," Lula said, sounding conciliatory as he spoke of boosting bilateral trade, which Brazil's foreign ministry said totaled US$1.5 billion last year. Paraguay's major trading city Ciudad del Este is an enormous mecca of shops bristling with whiskey, cigarettes, computers and clothes, and is considered one of South America's leading smuggling centers. The US Immigration and Customs Enforcement Agency announced last year a move with the tri-border countries to create units investigating trade based money-laundering here. While US government reports have sporadically raised suspicions the area is a fundraising source for radical groups such as Hezbollah and Hamas, authorities have said they have never found proof. Many merchants here are Brazilians of Syrian and Lebanese descent, or Asians who live in Foz de Iguacu and work on the Paraguayan side. They vigorously defend their business as legitimate and launched a post-Sept. 11, 2001, campaign rebutting the accusations.

Lufthansa to code-share with TAM of Brazil

Lufthansa has entered a code-sharing accord with Brazilian airline TAM, a year after the collapse of Brazil's Varig which was once Latin America's largest flag-carrier. There was no word in the announcement in Frankfurt about whether TAM would also join the German carrier's Star Alliance.

EU axes wood and packaging rules

The European Union has decided to scrap regulations for timber quality and packaging sizes in a drive to reduce red tape, the European Commission says. The "knots in wood" directive had set standards for the European timber trade since 1968. The deregulation of food packaging means there will be no obligatory national sizes for bread loaves, making life easier for producers. Packaging sizes for wine and spirits remain controlled, however.

The commission is "working hard to cut unnecessary red tape on all fronts"; the wood directive especially had become a symbol of unnecessary regulation.

District Attorney Uses Internet in Sentencing Ploy

A senior district attorney in Santa Barbara County, Calif., used a woman's MySpace.com postings to get a prison sentence in a manslaughter case. The 22-year-old woman was driving drunk when she had an accident in which her passenger was killed.

MySpace Agreement

MySpace has agreed to release data about registered sex offenders using its popular social-networking site.

US Approves Legislation To Combat Internet Spyware

The House passed legislation Tuesday to combat the criminal use of Internet spyware and scams aimed at stealing personal information from computer users. Spyware, is one of the biggest threats to consumers on the Internet. Lawmakers cited estimates that up to 90% of computers in this country are infected with some form of spyware. Spyware is software that secretly collects information about a person or organization and sends it to another entity without the user's consent. The bill protects consumers by imposing stiff penalties on the truly bad actors" while protecting legitimate online businesses that are developing new services to keep track of user preferences.

Using the Web as defense in disputes

On March 7, TerraCycle Inc., a small Trenton, N.J., company that makes all-natural fertilizers from worm droppings, learned it was being sued by industry giant Scotts Miracle-Gro Co.

Small companies live in dread of lawsuits by industry giant, which even if they win, can often be their undoing because of legal costs and distraction for management. So instead of just relying on legal counsel, small companies are also trying to harness the power of the Internet to elicit public support, boost sales and raise legal funds. Their core weapon: a blog.  "The Internet is the one place that if we can possibly win this, it will be there.”. Companies hope to get enough public opinion on their side that competition will drop the suit. Small businesses have long used guerilla tactics as an inexpensive way to wage battle against established, deep-pocketed rivals. In the 1980s, the founders of still-fledgling Ben & Jerry's ice cream launched a campaign against Pillsbury Co.'s Häagen-Dazs subsidiary (now owned by General Mills Inc.) when Häagen-Dazs allegedly told some distributors that they couldn't carry both brands. In addition to suing Pillsbury, Jerry Greenfield, one of the Ben & Jerry's founders, picketed Pillsbury's headquarters with a placard reading: "What's the Doughboy afraid of?" Today the Internet has lowered the cost barrier and drastically sped up the means of such communications. Still, no amount of public appeal can help businesses escape the realities of litigation.

• Daily Press Review 

Africa

Behind bars: Mike Mukula before he was taken to Luzira Prison. All former ministers of health  were charged with embezzlement.
Daily Monitor, Independent daily of Kampala, Uganda

ODM-Kenya clears nomination hurdle
East African Standard, Liberal daily of Nairobi, Kenya

Mac Manu says no to open debate for now  but CDD man endorses Osafo Maafo's ideal
Ghanaian Chronicle, Independent, published  in Accra, Ghana

Refugees flee Lebanon violence
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Six thugs rape Lusaka housewife
Times of Zambia, Government-owned daily of Lusaka, Zambia

Americas

'Funds' run $36 000 for needy children
Barbados Advocate, Independent daily of St Michael, Barbados

Government takes over gas regulator
Buenos Aires Herald, Liberal daily of Buenos Aires, Argentina

Harper tells troops progress being made
The Globe And Mail, Centrist daily of Toronto, Canada

Scared to talk - Children affected by AIDS do not trust guidance counsellors
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Asia Pacific

Doc may face murder rap / Respirator removal raises issues over ending terminal care
Daily Yomiuri, Conservative daily of Tokyo, Japan

2nd meeting of Strategic Economic Dialogue kicks off
People's Daily Online, Pro-government daily of Beijing, China

Student's dad a gun owner
The Sydney Morning Herald, Centrist daily of Sydney, Australia

Koirala Directs Police to Maintain Security
The Himalayan Times, Independent daily of Kathmandu, Nepal

GMA allies claim 195 House seats
The Manila Times, Pro-government daily of Manila, Philippines

Significant cut in LCCT airport tax
The Sun, Independent daily of Kuala Lumpur, Malaysia

Europe

German Rights Organizations Accuse Police of Illegal Activities
Deutsche Welle, International broadcaster of Cologne, Germany

Finance Minister Katainen wants to prevent overheating
Helsingin Sanomat, Centrist daily of Helsinki, Finland

Prosecutors  start indicting four suspected of Sberbank robbery in Chita
Interfax, Government-owned news agency, Moscow, Russia

Parties in bitter war of words as D-day looms
Irish Examiner, Centrist daily of Cork, Ireland

Britain Seeks Lugovoi's Extradition
The Moscow Times, Independent, English-language daily of Moscow, Russia

Britain and Russia face diplomatic stalemate over man accused of poisoning Litvinenko
The Scotsman, Centrist daily of Edinburgh, Scotland

Former Central Bank head encourages vigilance
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

SOS from Palestine
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

Fragile truce takes hold in Nahr al-Bared
The Daily Star, Independent, English-language daily of Beirut, Lebanon

UAE's dollar peg to stay
Gulf News, Independent daily of Dubai, United Arab Emirates

Peretz calls for world to up the pressure on Hamas
Ha'aretz, Liberal daily of Tel Aviv, Israel

Ahmadinejad terms Belarus visit positive
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

Gaza: IAF hits two ammunition depots overnight Tuesday
The Jerusalem Post, Conservative daily of Jerusalem, Israel

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