国际结算CH2Instrum课件

国际结算CH2InstrumChapter two Instruments of international settlement 2.1 An Overview of Negotiable Instruments 2.2 Bill of Exchange/Draft 2.3 Promissory Note 2.4 Check国际结算CH2Instrum 2.1.1 What is a negotiable instrument? 2.1.2 Chief features of negotiable instruments 2.1.3 Parties to a negotiable instrument2.1 An Overview 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CH2Instrum NegotiabilityNegotiability 1) negotiation can be effected only by delivery 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-causativeNon-causative Requisite in formRequisite 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 sellers creditor Local bankendorse and transfer(sell) the bill toForeign bankpresent for paymentas negotiable instrument国际结算CH2Instrum 1) 出票人出票人drawer 2) 付款人付款人payer/drawee 3) 收款人收款人payee 4) 承兑人承兑人acceptor 5) 背书人背书人endorser 6) 被背书人被背书人 endorsee 7) 参加承兑人参加承兑人acceptor for honor 8) 保证人保证人guarantor 9) 持票人持票人holder 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 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, goods,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 draftpayee2endorseholder3sell 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 paymentdraweeGuarantor 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 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CH2Instrum 2.2.1 Definition of a bill of exchange 2.2.2 Contents of a bill of exchange 2.2.3 Parties to a bill of exchange 2.2.4 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CH2Instrum section 3, bill of exchange act, 1882,UK A Bill of exchange is an unconditional order in writing, addressed by one person 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, 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CH2Instrum Requisite items Relatively necessary items Items at will2.2.2 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CH2Instrum Holder for value is the holder of a bill for which value has been given either 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 defects 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 draftPayable at a fixed time after sight ( the accepting date) Payable at a fixed time after date ( the issuing date)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 According to whether commercial documents are attached thereto clean draft; documentary draft According to the drawer Bankers draft; traders draft According 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 of a bill of exchange Accommodation (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 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（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 dated 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CH2Instrum 3.A draft is partly shown 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 annum. Please calculate discount国际结算CH2InstrumExchange forUSD100,000.00 Tempa, 15 May,2006 At 60 days after sight pay to the order of Ourselves the sum of US dollars one hundred thousand only. “Drawn under The French Issuing Bank, Paris, France L/C No.12345 dated 25 Feb., 2006” To The French Issuing Bank. For The American Exporter Co., Paris Ltd , Tempa signature 2. When ISBP does not put into force, the maturity falls on 20 May,2006 when ISBP puts into force, the maturity falls on 21May,2006Discount amount:1250060/365 9/100=184.93 Net Proceeds=12500-184.93国际结算CH2Instrum2.3 Promissory note 2.3.1 Definition of a promissory note 2.3.2 Characteristics of a promissory note 2.3.3 Contents of a promissory note 2.3.4 Classification of promissory note 2.3.5 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 note UK 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 bearer. 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 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 note The word “promissory note” An unconditional promise to pay Status of the payee Signature of the maker Place and date of issue Tenor A sum certain in money Place 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 Liabilities of the Parties (1) Maker the principal debtor. Engaging to pay the promissory note within the tenor. (2 ) Endorser A 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 provided 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 notesnAn order to pay.nA promise to pay.nA three-party instrument.nA two-party instrument.nWhere payable after date, a bill is generally accepted.nNever accepted.国际结算CH2InstrumBills of exchangePromissory notesnWhere 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.nNever accepted. However, according to the Uniform Law for Bills 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 notesnCan be accepted for honour.nNever accepted.nCan be drawn in a set.nOne copy.nForeign bills need protesting on dishonour to retain the liability of prior parties.nProtest is never needed.国际结算CH2InstrumBills of exchangePromissory notesnBefore acceptance, the drawer is primarily liable for payment, but after acceptance the acceptor becomes primarily liable for payment.nThe maker is always the party liable primarily for payment.nWhere there are two or more acceptors of a bill, the acceptors are always jointly liable.nWhere 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CH2Instrum2.4 Check 2.4.1 Definition of a Check 2.4.2 Contents of a Check 2.4.3 Features of a check 2.4.4 Parties to a check 2.4.5 Classification of Check 2.4.6 Check Clearing 2.4.7 A Bankers Duty to Honor Checks 2.4.8 Dishonor of Checks 2.4.9 Difference between a Check and a Bill of Exchange国际结算CH2Instrum 出票人签发的，委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 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 & Craft 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. 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-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 given. 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 Check Uncrossed check & 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CH2Instrum Travelers Check Certified checksvA check is certified by the drawee bank. Once a check is certified by the drawee 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 check clearing. Collecting bank Paying bank Process of Check Clearing 国际结算CH2InstrumPayee Collecting Bank 2P a y i n g 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 receiving 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 account;(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 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 alterations 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 exchangenThe drawer is the customer of the drawee bank.nNo specific requirement, i.e. , the drawer can be a trader or a bank.nThe drawee must be the bank with which the drawer opens a checking account.nNo specific requirement, i.e. , the drawee can be a trader or a bank.nA payment can be certified.nBoth a payment instrument and a credit instrument.国际结算CH2InstrumChequesBills of exchangenin 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.nIn the case of a sight bill, or a usance bill before acceptance, the drawer is the principal obligor; in the case of an accepted bill, the acceptor is the principal obligor.国际结算CH2InstrumChequesBills of exchangenA cheque can be certified.nA bill can be accepted, guaranteed or accepted for honour.nA cheque can be cancelled before payment.nAfter acceptance, the payment is irrevocable.nA cheque is payable on demand.nA bill is payable 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 when 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 moneyvPayable at a fixed amount vPayable with interest interest rate should be specified to make the amount certain. e.g. “payable at USD three hundred plus interest at 5% p.a.” vPayable 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” vPayable according to an indicated rate of exchange rate of exchange must be indicated 5) In money Requisite items(二二)国际结算CH2Instrumv Name 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 transferable” 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CH2Instrumv Date of issue to determine the expiry date and paying date; make sure whether the drawer has disposing capacity v Name of drawee v The 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 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CH2Instrumv Place of issue v Place of payment v Tenor the time to effect payment; the due date or maturity date indicated 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 FIFTEEN 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 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 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CH2Instrum The payee or holder signs on the back of 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 ：Special endorsement 记名背书记名背书/特别背书特别背书/正式背书正式背书/完全背书完全背书 Pay to the order of E Co., N