Liability, Defenses, and Discharge

Liability

There are two kinds of liability associated with negotiable instruments:

• Signature liability.
• Warranty Liability.

Signature Liability

Relates to signatures on instruments.
Signers of negotiable instruments are potentially liable for amount stated on instrument.

• Primary Liability: Makers/Acceptors.
• Secondary Liability: Drawers/Indorsers.

Primary versus Secondary Liability

Makers.

• Promises to pay the note.
• Obligated to pay terms of instrument at time of signing.
Acceptors.
• Drawee promises to pay an instrument when presented for payment.



Secondary Liability

Proper Presentment.
• Must be timely (checks w/in 30 days).
Dishonor.
Case 26.1: Messing v. Bank of America (2002).

Proper Notice.

• Manner of Notice in any Reasonable manner.
• Notice to Indorsers.



Accommodation Parties

Signs instrument to lend name as credit to another party on the instrument.
• Makers v. Indorsers.



Authorized Agents’ Signatures

• Agent agrees to act for Principal.
• Agents can hold Principal liable if authorized to sign.
• Principal must be clearly named.
• Agent is personally liable when Principal is not named or disclosed, unless check is drawn on Principal’s account.
Case 26.2: Caraway v. Land Design Studio (2001).

Unauthorized Signatures

Forgery does not bind owner but Bank is liable.
If Agent has no authority, Agent is personally liable, but Principal is not, unless ratified.
Exceptions:

• Ratification of signature.
• Negligence of party.
• Holder in Due Course.

Special Rules for Unauthorized Indorsements

Unauthorized indorsement does not bind maker/drawer except:

• “Imposter Rule”: imposter induces maker/drawer to issue check to imposter.
• When imposter signs as/on behalf of maker/drawer intending payee has no interest in the instrument.
• Fictitious Payee.

Warranty Liability

Extends to both signers and non-signers.
Breach of warranty can occur when the instrument is transferred or presented for payment.
Transferors make certain implied warranties regarding instruments they negotiate.
Liability not subject to dishonor, presentment, notice.
Liabilities: Transfer or Presentment.

Transfer Warranties

Following transfer warranties extend to all subsequent holders:

• Transferor is entitled to enforce the instrument.
• Signatures are authentic and authorized.
• Instrument has not been altered.
• Instrument not subject to defense.
• Transferor has no notice of insolvency.

Presentment Warranties

Person who presents an instrument makes the following presentment warranties:

• No missing or unauthorized indorsement.
• Instrument has not been altered.
• Person obtaining payment has no knowledge signature is unauthorized.

Case 26.3: First National Bank of Chicago v. MidAmerica Federal Savings (1999).

Defenses

Universal or Real - can be used to defeat a holder and a HDC. Personal - can be used to defeat a holder but not a HDC.

Universal Defenses

Forgery of maker’s or drawer’s signature.

• Or if an authorized agent exceeds his authority to the amount which exceeds his authority.

Fraud in the execution - the”autograph” situation, not fraud in the inducement.

Material Alteration.

• Do not have to pay the altered amount ($8 to $800), only a personal defense to the original amount ($8).
• Not a real defense if instrument left blank, (.. filled in $800), then have to pay all ($800).

Discharge in Bankruptcy.

Infancy (Minority).
Illegality - severe enough to make contract void.
Mental Incapacity (adjudicated by court).
Extreme Duress. If instrument signed under threat of immediate force or violence.

Personal Defenses

Valid against holders but not HDC’s.

• Breach of contract or warranty.
• Lack of consideration.
• Fraud in the inducement.
• Illegality - not severe enough to make void.

Mental incapacity - not severe enough to make void.

Discharge.

• By payment or cancellation.
• Unauthorized completion.
• Non-delivery of instrument.
• Ordinary duress or undue influence rendering contract voidable.

Federal Limits on HDC Rights

FTC Rule 433 (1976) abolished the HDC doctrine in consumer credit transactions.

• Allows Buyer to assert any defense she might have against the Seller of goods or services (Car Dealer), against the subsequent HDC (Bank) as well.
• So Buyer’s duty to pay is conditional on Seller’s full performance under contract.
Discharge from liability on an instrument can occur by:
• Payment.
• Cancellation or Surrender.
• Reacquisition.
• Impairment of Recourse.
• Impairment of Collateral.