Work - Economics - domestic and international payments technique
Economics
Translation draft
Check (Cheque)
The
check is a widely used payment instrument in countries with
advanced economies (in the 1980s more than 90% of domestic
payments in the US were settled by check), being used in
domestic and international payments (including tourism). In
our country, the legal framework for payment by check is
given by Law no. 59/1934 on the check.
The last legislative action regarding the check is represented by GEO 38/2008 for the amendment and completion of Law no. 59/1934 on the check in the idea that the check be processed also by electronic means.
The legal premises of issuing the check are represented by the agreement between the drawer and the banking company as well as by the coverage / provision (provision) representing the credit balance of the drawer's bank account or the account overdraft authorization granted by the bank (overdraft).
According to NBR requirements, check forms must include: separate series and number for each form (check tab), drawing elements (embedded watermark and complex network of lines, text or drawing in fluorescent colors, of which at least two colors be detected under ultraviolet light, invisible fibers with blue, green and red reflection, chemical treatment of paper and printing with water-insensitive inks or chemical agents, secret security elements chosen by each bank and known only to them, microtext, incorporation of a drawing which cannot be reproduced in black and white or color copiers, the band reserved for automatic processing (at the bottom of the tab and,last but not least, the approval of the NBR before printing the forms.
The terms banking company, credit company, credit institution (in the old texts described by the word "banker") are used to mean the legal persons provided for banking and credit.
The contents of the check, according to the legal provisions of our country, must include the name of "check" given in the title (expressed in the language used to write this title), the unconditional order to pay (make the transfer) the amount mentioned, the name of the who has to pay (draw) by default the name of the bank that has to pay, the place of payment, the date and place of issuance, the signature of the drawer (of the person issuing the check). Of course, these legal provisions are supplemented by the specifics of each bank in accordance with its operating formalities as well as the form of the check.
Any signature of a check must include: a. Clearly, the name and surname of the natural person or the name of the legal person or of the obligating entity; b. the handwritten signature of the natural person, respectively of the legal representatives or of the proxies of the obligating legal persons or of the representatives or proxies of other categories of entities that use such instruments.
The check is a document (a written order - by means of a standard form, provided by banks for check account holders) by which a person (drawer, issuer) gives an order to a bank (drawn), at which the person has one available in the account, to pay a certain amount of money determined to a third party (the beneficiary of the check), the payment being made on demand. In order to issue checks, holders must have accounts covering the amounts ordered by the check issued, on the basis of cash, bank deposit or on the basis of credit (the term provision is also used),
Whoever puts his signature on a check, as a representative of a person for whom he does not have the power to work, is personally held under the check and, if he has paid, he has the same rights that the alleged representative would have had. The same rule applies to the representative who has exceeded his power of attorney. Any person may be bound by check, by proxy, even if the warrant is provided in general terms, as regards the agent's right to issue or sign checks.
In addition, if the check bears the signatures of persons unable to be bound by the check, false signatures or signatures of imaginary persons, or signatures which for any other reason could not bind the persons who signed the check, or in whose name it was signed, however, the obligations of the other signatories remain valid.
In the absence of a special field, the place shown next to the name of the draw is considered a place of payment. If more than one place is shown next to the name of the draw, the check is payable at the first place shown. In their absence, or in any case, the check shall be payable at the place where the draw has its principal place of business. The check that does not show where it was issued is considered signed at the place shown next to the name of the shooter.
The shooter is responsible for payment. Any clause by which the shooter disclaims this liability shall be deemed unwritten.
From the point of view of the possible "completion" problems of the check, there are express legal clarifications related to the interpretation. So, if in a check the payment amount is written in letters and numbers, in case of difference the payment amount is the one written in letters. If the payment amount is entered more than once, either in letters or numbers, the difference in payment is the lowest.
If an incomplete check has been completed without taking into account the agreements reached, the non-observance of these agreements cannot be opposed to the holder, unless he has obtained the check in bad faith, or if the holder has made a serious mistake in obtaining the check.
The check is payable on sight. Any stipulation to the contrary is considered unwritten. The order to pay the amount of the check does not take effect until after the deadline for submission. In the absence of such an order, the drawee may pay even after the expiration of the term. The effects of the check are not achieved by the death of the drawer, his incapacity or the restriction of his capacity, which occurred after the check was issued. The drawee may request, by paying the check, that it be handed over to him with the mention "paid" by the holder. The owner cannot refuse a down payment. In the event of a partial payment, the drawee may request that payment be made on the check and that a receipt be given.
The main function of the check is the means of payment, the beneficiary of the payment can be a person (beneficiary) mentioned by the drawer (this being a payment check) or it can even be the drawer (being a withdrawal check).
Therefore, the debtor of a payment draws a check in favor of the creditor, the latter being able to collect the equivalent value of the check from the issuer's bank. In this case, the check may be:
- nominative (when the name of the beneficiary is indicated and the mention "not by order" is made, the payment being made only to the mentioned / nominated person, this being able to be transmitted only by assignment of common law);
- by order (when a certain natural or legal person is indicated as beneficiary - nominative character - being non-transferable or, only under certain conditions, sent by endorsement and paid to the last beneficiary indicated on the check - transmission by guarantee once the title is issued);
- to the bearer (without including the name of the beneficiary, the holder can collect its value at any time, like a banknote - transmission by simple tradition - there is the possibility to mention the beneficiary but it has effects only under certain special conditions).
It can also be used to obtain cash from banks (cash check - in this case the issuer draws a check in his name, such as a cash withdrawal from the account in the form of cash) or to defer payment (short-term credit from the moment of the birth of the payment obligation until the check is actually cashed, only in certain situations - the check is issued at a date when the provision is not constituted but will be constituted until the day of the check "credit" to the drawer, as in the case of bills of exchange, or the check is handed over by the beneficiary to his bank, for a discount or for collection,in both cases, the bank immediately credits the sender's account with the corresponding amount, without waiting for the cash to be drawn, thus granting a loan).
It can be deduced so far that the functions of the check are:
a. instrument for withdrawing from the credit balance of one's own bank account;
b. payment instrument with scriptural currency;
c. credit instrument.
Even if it is a credit instrument, it should be noted that any interest stipulation written in the check is considered unwritten.
The check can only be drawn on a banker. However, the check drawn and payable abroad is valid as a check even if the drawn is not a banker's. The check can only be issued if the drawer is available to draw, available on which he has the right to dispose by check, on the basis of an express or tacit agreement. The title issued without observing these conditions is still valid as a check. The check cannot be considered unacceptable - the acceptance statement on the check is considered unwritten. Any statement of certification, view or equivalent, written on the title and signed by the drawing,
The check may be made payable to a particular person with or without the express clause "on order", with the clause "not on order", or an equivalent expression "bearer", with the statement "or bearer", or an equivalent expression "bearer". ". The check without showing the payee is considered a payer's check.
The stipulated check payable to a certain person, with or without the express "promissory note" clause, is transferable by pledge. The stipulated check payable to a certain person, with the clause "not to order" or an equivalent expression, is transferable only in the form and with the effects of an ordinary assignment. The endorsement can be made even for the benefit of the shooter or any other obligor. They can pledge the check again.
The endorsement must be unconditional. Any condition to which it is subject shall be deemed unwritten. Partial endorsement is null. It is also null and void. The "bearer" endorsement is equivalent to a blank endorsement. The drawing for the benefit of the drawing has the value of a receipt, unless the drawing has several establishments and if the drawing is made for the benefit of a establishment other than the one on which the check was drawn. The endorsement must be written on the check; it must be written by the guarantor. The endorsement is valid even if the beneficiary is not mentioned or the guarantor has only put the signature (blank endorsement). In the latter case, the endorsement must be written on the check in order to be valid.
The guarantor transfers all the rights resulting from the check. If the endorsement is blank, the holder may: 1. fill it in with his or her own name or the name of another person; turn it on and without filling in the blank.
The guarantor, unless otherwise stated, is liable for payment. He can forbid a new endorsement; in this case he does not respond to the persons to whom the check was subsequently drawn.
The holder of a check transmissible by pledge is considered legitimate if he justifies his right by an uninterrupted series of pledges even if the last pledge is blank. Deleted endorsements are considered unwritten in this regard. If a blank endorsement is followed by another endorsement, its signatory is deemed to have obtained the blank endorsement check. The endorsement placed on a bearer's check makes the guarantor liable, in accordance with the provisions relating to regression; however, it does not turn the title into a promissory note. If a person has accidentally lost possession of a check, the holder in whose hands the check has been received, whether it is a bearer's check or a transferable check,
The drawee who pays a check, which can be guaranteed, is obliged to check the regularity of the succession of the guarantees, if not the authenticity of the signatures of the guarantors.
Persons against whom a check has been brought, on the basis of a check, may not oppose to the holder exceptions based on his personal relations with the drawer or previous holders, unless the holder acquiring the check knowingly worked to the detriment of the debtor.
If the guarantor includes the words "value for cover", "for collection", "for power of attorney", or any other statement that implies a simple mandate, the holder may exercise all the rights arising from the check, if he can only guarantee it as a power of attorney. In this case, the obligors can only oppose to the owner the exceptions that could have been opposed to the guarantor. The mandate contained in a "power of attorney" endorsement does not end with the death of the mandate, incapacity or restriction of its capacity.
The endorsement made after the protest or other equivalent finding, or after the expiration of the term of presentation, produces only the effects of an ordinary assignment. The undated endorsement is considered, until proven otherwise, to have been made before the protest or equivalent finding, or before the expiration of the previously presented term.
Apart from bearer checks, any check issued in Romania and payable in a state may be issued in several identical copies. When a check is issued in several copies, these copies must be numbered by the title of the check itself; without this, each copy is considered a separate check. Payment for one copy is a release, even if it is not stipulated that such payment cancels the effect of the other copies. The guarantor who sent the copies to various persons, as well as the following guarantors, are kept on the basis of all copies bearing their signature and which have not been returned to them.
In all cases (domestic or international payment) the check circuit starts with its issuance and the involvement of the beneficiary and of the bank or banks carrying out the payment operations. The next step is to deposit the check with one of the banks involved in the circuit, when it is checked (even if, in principle, it should not be issued without coverage) either through the media or simply by forwarding it. payment (when deposited at the issuer's bank) or sending the check to the issuer's bank.
The presentation and protest of a check can only be made on a working day. When the last day of the period prescribed by law, for the performance of the acts relating to the check and in particular for the protest or an equivalent act, is a public holiday, this period shall be extended until the first following working day. Intermediate public holidays are included in the calculation of the term. Within the time limits provided by law, the day from which they start to run shall not be counted. No legal or judicial grace periods are allowed.
It should be noted that this check circuit involves a longer or shorter period of time, which can reach 3-4 weeks, the operations requiring some time even in the case of using electronic funds transfer (EFT). This involved both the appearance of forward transactions, the checks being able to "carry" a "settlement deadline" starting from the moment of its issuance, after which the check is considered expired (the sanction being the loss of the right of recourse against guarantors and guarantors) , as well as the appearance of the legal provisions related to the validity of a check form issued (with general or interbank legislative character - in our country the check issued has a validity period of 15 days for its payment). The check issued in a foreign country and payable in Romania must be presented within 30 days, and if it is issued outside Europe within 70 days.
The deadlines are counted from the day shown on the check as the date of issue. If the check is payable abroad, the presentation deadline will be the one indicated by the law of the place of payment. If this law does not provide, the local rules will apply. When a check is drawn between two places with special calendars, the day of issue is replaced by the corresponding day of the place of payment. Another risk that may arise due to the longer settlement period is the lack of a guarantee against commercial risks, the bankruptcy of the issuer implying the loss of the validity of the check, not to mention the fact that the check may remain uncovered for other reasons.
When a check is payable in a currency that does not have a currency at the place of payment, the amount may be paid, within the time limit for presenting the check in the currency of the country, according to its value on the day of payment. If the payment has not been made on presentation, the holder may, at his choice, request that the amount be paid in the currency of the country, either after the exchange rate on the day of presentation or after the exchange rate on the day of payment. The value of the coin is determined by the wear and tear of the place of payment. The drawer may, however, stipulate that the amount of the payment will be calculated after an exchange rate indicated on the check. The rules shown here do not apply where the drawer has stipulated that payment must be made in a specific currency shown (the actual payment clause in foreign currency). If the amount is shown in a currency with the same denomination but a different value in the country of issue and in the country of payment, the indication is assumed to refer to the currency of the place of payment.
Presenting a check to a clearing office is equivalent to presenting a payment. The presentation of a check for payment can be made in original or by truncation. For the purposes of the legal provisions, truncation means the computer procedure which consists of the following successive operations: a. The transposition in electronic format of the relevant information from the original check; b. the reproduction of the image of the original check in electronic format and c. the transmission of the electronic information obtained through the operations at letter a. and b. to the paying credit institution.
The presentation on payment of a check by truncation produces the same legal effects as the presentation on payment of the original check, provided that the latter was issued in compliance with the provisions of the law. Credit institutions may use the truncation procedure, provided that there is a prior agreement between them in the context of a payment arrangement or an agreement consisting in their adherence to a payment system.
The relevant information for truncation, contained in the original check, is established according to the conventions.
The original check image is an electronic copy of the original check. The image of the original check must comply with the standards established according to the conventions. The moment of receipt by the paying credit institution, respectively by a payment system of the relevant information for truncation and of the electronic image of the respective check, according to the previous ones, constitutes the moment of presentation for payment. The transmission to the paying credit institution of the relevant information and the image of the check, by truncation, must be done in such a way as to ensure their authenticity and integrity, by using any technical procedures allowed by law.
When presenting a check with a truncated check, the credit institution is obliged to:
a. to verify that the original check complies in form and content with the legal provisions, including the regularity of the endorsement of the endorsements, except for the authenticity of the signatures of the drawer and the guarantors;
b. to ensure the accuracy and conformity of the truncation information transmitted electronically with the data in the original check, as well as the conformity of the check image with the original check.
The credit institution is liable for any loss suffered by non-compliance with its obligations under the law.
The total or partial refusal to pay of a check presented for payment by truncation is made in electronic form, by the paying credit institution. Based on the refusal, the credit institution holding the original check will enter:
a. the date of its presentation for payment, in order to ascertain whether the presentation was made within the legal terms;
b. the declaration of refusal, dated and signed by its legal or authorized representatives.
The statements written on the original check are proof of refusal to pay.
There are some operations that aim to increase the security of payment by check, the most used being the guarantee of a check downstream, for all or part of it - "requesting payment by check in advance". This form is often used when there are major risks, its use when it is not the case giving a negative impression that often harms contractual relations.
Payment of a check can be guaranteed by a down payment for all or only part of the amount. This guarantee can be given by a third party other than the drawer or even by a signer of the check. The endorsement is given by check. It is expressed in the words "downstream" or any equivalent form; it is signed by the guarantor. The endorsement must show for whom it is given. In the absence of this indication, he is considered to have been shot.
The guarantor is treated in the same way as the person for whom he endorsed. Its obligation is valid even if the obligation it has guaranteed is void for any reason other than a formal defect. When the guarantor pays the check, he acquires the rights resulting from the check against the person for whom he has guaranteed and against those who are held to the latter under the check.
Other "safety methods" are:
- "certified check" where, to cover the risk of non-payment, the creditor may request his client to issue a check guaranteed by his bank, by entering the word "certificate" on the check form, signing the check on the front, the bank guaranteeing the existence of the provision in the author's account until the expiration of the limitation period of 6 months, or of a specified express term;
- the "bank check" showing the highest payment guarantees, issued by the beneficiary's (exporter's) bank on his account;
- "check check" so called because it has two parallel bars on the front of the check form (general check - if there is no indication between the two lines or the mention "banker" or other equivalent term), this being settled between banks by bank transfer (cannot be paid in cash). If the name of a bank is specified between the two bars (special bar), the check can only be paid to that bank, in the current account of the beneficiary. In addition, the crossed check cannot be endorsed (unlike the unchecked check that can flow from one person to another through the endorsement); The general barrier can be transformed into a special barrier, but the special barrier cannot be transformed into a general barrier. Cutting (deleting) lines or the name of the registered banker is considered as if it had not been done. The general check check can only be paid by a banker or a drawing customer. The special check check can only be paid by the drawer to the banker on the check or, if it is drawn, to a customer of his. However, the indicated banker may resort to another banker for collection. A banker cannot obtain a cashed check from one of his clients or from another banker. He cannot collect it for persons other than these. The check bearing several special barriers may be paid by cash only in the case of two barriers, one of which for collection by means of a clearing office. The drawer and the banker who does not comply with the provisions are liable for the damage caused up to the amount of the check.
- "circular check" issued by a particular authorized banking company for the amount collected from the holder at the time of issue, payable at sight in any of the places shown alternately by the payer;
- "check payable on account" when the drawer or holder prohibits payment in cash, with the words "payable on account" or "transfer only", etc .;
- the "non-transferable check" which can be paid only to the recipient or, at his request, is credited to his current account, which is marked "non-transferable"; the payee may only draw the check from a banker for collection; the banker can't pass it on. The endorsements against this prescription are considered unwritten. Deleting the clause is considered inappropriate. The person who pays a non-transferable check to someone other than the recipient, or the banker's banknote for collection, is responsible for the payment made. The "non-transferable" clause must be put by the banker himself, at the client's request. The same clause can be put by a guarantor, with the same effects.
- "postal check" which is a banking service provided by the post office and is used for use in localities without branches, subsidiaries or branches of banks;
- the "traveler's check" by which the issuer assumes the obligation to pay by the formula "the drawer pays this traveler's check to him ... or at his order" being used in travel to make payments at hotels, restaurants, shops, banks, stations gasoline, etc. The drawer may make the payment of the check of existence subject to the title at the time of presentation of a second signature the same as that of the recipient.
A circular check is a promissory note issued by a bank or other credit institution, specifically authorized, for amounts available to them from the paychecks at the time of issue, payable on demand at any of the places indicated by the issuer. the bank or credit institution, authorized to issue circular checks, will have to deposit with the NBR, at the latest until the next day of issuance, a guarantee in government securities, guaranteed by the state, or lombardable at the NBR, calculated during the day, 40% of the value of the circular checks issued daily, a guarantee on which the holders of such checks have a special privilege.
The circular check will include:
1. the name "circular check" in the title;
2. the unconditional promise to pay a certain amount of money at sight;
3. name and surname of the recipient;
4. showing the date and place where the circular check was issued;
5. signature of the issuing bank or institution.
The title which lacks any of the conditions shown above has no value as a circular check.
The owner forfeits the right of recourse if he does not present the title to the payment within 30 days from the issue. The action against the issuer is prescribed by 3 years from the date of issue. The guarantor in favor of the issuer extinguishes the check.
The bank or credit institution may entrust the issuance of circular checks to a correspondent banker, provided, however, that the check issued bears the visa of the bank or authorized institute, and the correspondent signs as a representative of that bank or institute.
All provisions of the bill of exchange relating to the endorsement, payment, protest, return, prescription as well as those relating to securities with false signatures or of persons are applicable to the circular check, insofar as it is not derogated by law and is not incompatible with it. incapable. The provisions of the non-counter check on the cash-only, non-transferable and travel-only check will also apply to the circular check. In the procedure for canceling and replacing the circular check, the general provisions with the following changes will apply.
The request must be addressed to the president of the court where the issuer has an establishment. The notification of the order will be made by one of the establishments closest to the issuer, which, at the expense of the petitioner, will immediately notify all the establishments of the payment places where the check is payable.
The opposition will be made to the court that issued the order, communicating to the petitioner and to the representative of the issuer a copy of the opposition together with the summons. The issuer who paid the circular check, with all the notice about the loss or theft of the check, is not responsible for the payment made by an establishment which, due to a fact not imputable to the issuer, could not reach the notification of the cancellation order. In case of loss, theft or destruction of a non-transferable circular check, it will not be possible to use the cancellation procedure, but the recipient has the right to obtain, after 20 days from the notification, the payment of the check from the establishment where the notification was made.
The drawer, as well as the holder of a check, may prohibit payment in cash by inserting the words "payable into account", "bank transfer only", or other equivalent expression across the front of the check. In this case, the check can only be issued by the drawee in a script operation (credit to account, bank transfer or clearing). The script operation is equivalent to payment. Deleting the words "payable on account", "transfer only", is considered as if it had not been done. The drawdown that does not comply with the provisions is liable for the damage caused up to the amount of the check.
The newest method of guaranteeing checks is "eurocec" which is a check with a guarantee card. The specificity of these checks consists in the fact that the issuing bank issues together with the check book and a guarantee card that includes a series of data (account number, beneficiary name) that offers greater security and also guarantees the paying bank the collection of money from the issuing bank.
Regarding the traveler's checks, it can be mentioned that they are quite used in international tourism, this being a fixed value check, issued by banks (its format being a banknote / banknote type) and bought by tourists in view to make payments without the use of cash (for accommodation, transport, etc.).
In conclusion, the check is a payment instrument in the use of which some recommendations are required:
- for those who make payments: the check must be used for significant payments, at a distance, for which it is necessary to pre-establish a means of proof, to issue a check to be made only if there is a prior and sufficient provision in the account, to issue checks "blank "to be refused regardless of the possible reason for being invoked, the risks of such issuance being immense, most often of a criminal nature, the check book (form) must be unsigned (and / or stamped) and kept in a safe place of course, the theft or damage must be reported in writing immediately to the bank.
- for the beneficiaries of the check sheets (check payments): to check carefully if the check does not present technical anomalies and if it contains all the elements necessary for its validity, to ask the payer for the identity card whose data are written on the back of the check, not to count the bank's refusal to issue the check without coverage - the bank's refusal to make the payment in the absence of the provision retains the chance for the issuer to pay directly or to fund the payment account, provided the check tab does not expire because there are no provisions to extend its validity,without this affecting in any way the crime committed by the issuer -, to deposit the check at the bank within the legal limits of 8 days (for local settlements to the issuer) and 15 days (for other localities) - at the expiration of this term the check can no longer be used but the claim is not extinguished, because there is a legal limitation period of 3 years and in this case it will return to the need to extinguish it to the issuer of the check either by issuing another check form or by making payment in another form -,immediately notify the police when the bank refuses the check because it has been declared lost or stolen - to rule out complicity with the issuer or perpetrator of the theft.
The holder may exercise the right of recourse against the guarantors, the drawer and the other obligors, if the check presented in due time is not paid and if the refusal of payment is found: 1. either by an authentic act (protest), 2. or by a declaration of the drawing dated and written on the check, including the day on which it was presented, 3. or by a dated statement of a clearing office stating that the check was remitted to him in due time and that it had not been paid. The owner retains his rights against the shooter, although the check was not presented in a timely manner, or no statement was made equivalent to the protest. If, after the submission deadline,
The protest or equivalent finding must be made before the deadline for submission. If the presentation was made on the last day of the term, the protest or equivalent finding may be made on the first following working day.
The owner must notify his guarantor and the shooter of non-payment within 4 working days following the day of the protest, or the equivalent finding, or the day of the presentation, in case of a "no expense" stipulation. Each guarantor must, within two working days following the day on which he received the acknowledgment, notify his guarantor of the acknowledgment received, showing the names and addresses of those who made the previous notifications; it will follow the same way to the shooter. The terms shown here run from the receipt of the previous notice. When, according to the foregoing, an acknowledgment is made to a signatory of the check, the same notice must be given to the guarantor within the same period. In the event that a guarantor has not shown his address or has shown it in an illegible way, the acknowledgment made to the guarantor, which precedes him, is sufficient. He must prove that he made the notification within the prescribed time. This time limit shall be deemed to have been observed if a letter of formal notice has been delivered to the post office within the written time limit. He who does not make the acquittal within the term indicated above, does not forfeit his right to regress; he is liable, if any, for the damage caused by his negligence, but without the damages being able to exceed the amount of the check.
The drawer, guarantor, guarantor may, by stating "no expenses", "without protest" or any other equivalent expression, written on the check and signed, exempt the holder, for the exercise of the right of recourse, from rehearsing the protest or an equivalent finding. This stipulation does not exempt the holder from presenting the check within the established deadlines, nor from the notifications to be made. The proof of non-observance of the terms is in the charge of the one who opposes it to the possessor. If the stipulation is written by the shooter, it produces its effects towards all the signatories; if it is registered by a guarantor or guarantor, it produces its effects only in relation to it. If, with all the clause entered by the shooter, the owner makes the protest or the equivalent finding, the expenses remain in his charge. If the stipulation has been entered by a guarantor or guarantor, the costs of the protest or equivalent finding, if such an act has been committed, may be claimed from all signatories.
All those who were obliged by check are held jointly and severally by the holder. The owner has the right to prosecute everyone, individually or collectively, without being required to observe the order in which they were obliged. Any signatory who paid the check has the same right. The action brought against one of the obligors does not prevent the pursuit of the others, even if they are subsequent to the one against which the first action was taken.
The possessor may claim by way of recourse: 1. the amount shown in the unpaid check, 2. the legal interest on this amount, calculated on presentation, 3. the expenses of protest or equivalent finding, those of the acquaintance made as well as the other expenses. The person who paid the check in reverse may claim from his guarantors: 1. the full amount paid, 2. the legal interest on that amount, calculated from the day when he paid the amount, 3. the expenses he incurred. Any debtor against whom a right of recourse is exercised or could be exercised may, in return for payment, demand the delivery of the check, together with the protest or equivalent finding, and a return account paid.
When the presentation of the check, the protest, or the equivalent finding within the prescribed time limits, is prevented by an unavoidable obstacle (legal provision, fortuitous event or force majeure), these deadlines are extended. The owner is obliged to inform, without delay, the guarantor or the fortuitous or force majeure case and to make on the check the mention dated and signed by him of this notification. After the cessation of the fortuitous event or force majeure, the holder must, without delay, present the check for payment and, if necessary, make the protest or the equivalent finding. If the fortuitous event or force majeure lasts 15 days, counted from the date on which the holder notified his guarantor of the fortuitous event or force majeure, even if the notification is made before the expiry of the time limit for submission, the rights of of an equivalent finding. The purely personal cases of the holder or of the person whom he instructed to present the check, to make the protest or to make an equivalent finding are not considered fortuitous or force majeure cases. the rights of recourse may be exercised without the need for any presentation, protest or equivalent finding. The purely personal cases of the holder or of the person whom he instructed to present the check, to make the protest or to make an equivalent finding are not considered fortuitous or force majeure cases. the rights of recourse may be exercised without the need for any presentation, protest or equivalent finding. The purely personal cases of the holder or of the person whom he instructed to present the check, to make the protest or to make an equivalent finding are not considered fortuitous or force majeure cases.
In case of violation of the legal provisions regarding the check, the payment incident and / or the banking interdiction will invariably be reached.
The payment incident is the inability of a drawer (check payee) to operate and / or cash one or more check sheets. In general, the incident will occur with the deposit of the respective check sheet / sheets, at which point the bank of the drawer, the NBR and the bank of the drawer (issuer) will "enter" in a typical procedure (expressly specified by legislative regulations) initiated by the refusal. payment / prohibition of payment for various reasons. These are represented by:
- check issued without the authorization of the drawing;
- check refused due to total or partial lack of cash, in case of presentation for payment after the expiration of the presentation term;
- check refused due to total lack of cash, in case of presentation for payment before the deadline for presentation;
- check refused due to partial non-availability, in case of presentation for payment before the expiration of the presentation term;
- the drawer is unable to issue checks;
- the check presents different conditions regarding the payment, property dispute;
- check issued with a false date or which lacks a mandatory indication;
- circular check / traveler's check issued to the bearer;
- the check belongs to a circulation of instruments not approved by the NBR;
- check issued by a banknote drawer;
- the check belongs to a set of instruments that has been withdrawn from circulation;
- bankruptcy of the check drawer declared lost, stolen, destroyed;
- lack of mandate of the signatory of the defect to complete the entries on the check (with reference to the modification of some elements on the check, incorrect registration or lack of an account number, inconsistency of the signatures).
The banking ban is "the regime imposed by the bank on an account holder who prohibits the issuance of checks for a period of one year, in accordance with mutual commitments applicable to the payment of checks, as a result of major payment incidents, namely:
- issuing a check without drawing authorization;
- the refusal of the check following the finding by the drawn bank of the partial or total lack of cash in the drawer's account, if he otherwise disposes, in whole or in part, of the cash he had, before the deadline set for presentation;
- the issuance of a check with a false date or which lacks one of the obligatory mentions;
- issuing a circular check or a "bearer" traveler's check;
- issuing a check by a banknote drawer ".
We must not forget that the interbank procedures "initiated" by the payment incident often have much more serious repercussions than the banking interdiction because, on the way of resolving the born dispute, the legal obligation of the intervention of the Territorial Court intervenes. It will agree on the legality of any payment incident, upon mandatory notification from the NBR, and, if necessary, notify the Prosecutor's Office for the "settlement" of criminal incidents. In detail, the check law presents the following ...
The bill of exchange cannot be exercised between several debtors who have an equal situation in the check; the relations between these persons will be governed by the rules relating to joint and several obligations.
The check has the value of an enforceable title for capital and accessories. The executory formula is shown in art. 269 C.Proc.Civ. (The new Code of Civil Procedure refers to art. 665 para. (7)). Competent to invest the check with executory formula is the state notary (court). The check issued abroad has the same enforceable effects, if they are allowed by the law of the place where the check was issued. The writ of execution must include the exact transcript of the check or protest, as well as the other documents from which the amount due results.
Within 5 days of receiving the summons, the debtor may oppose the execution. The opposition will be introduced in court in the constituency of which is the state notary (court) that invested the check with executory formula. This court will judge the opposition as a matter of urgency and especially before any other cause. The court will only be able to suspend enforcement if the opponent does not recognize the signature, falsely register, or does not recognize the power of attorney. In case of suspension of execution, the creditor will be able to obtain insurance measures.
In the proceedings initiated either by way of action or by way of opposition, the debtor will be able to oppose only the exceptions of nullity of the title as well as those that are not stopped by the specifications related to the personal connections. Personal exceptions must be expedited and always based on written evidence. Exceptions must be invoked at the first appearance. The first term of appearance means the first term of the first instance, when the procedure is fulfilled, the parties may oppose conclusions on the merits, even if the defendant or opponent does not appear.
If from the report which gave rise to the issue or transmission of the check, a causal action derives, it remains in force, with all the issuance or transmission of the check, unless the novation is proved. The holder of the check can only exercise the causal action by offering the debtor the restitution of the check, depositing it at the registry of the competent court and at the same time justifying the fulfillment of the necessary formalities for the preservation towards the debtor of the regression actions that may belong to him.
When the holder of the check has lost the bill of exchange action against all the obligors and has no causal action against them, he can act on the drawer who did not have the cash on hand, or has been unjustly enriched to his detriment. It can exercise the same action under the same conditions, and against guarantors.
The protest is made at the state notary (court). Witness assistance is not required for the protest. The protest can be filed by a separate document or on the original of the check itself or on its duplicate. This addition can be added by the notary. If the protest ends in addition, the one who concluded it must put the official seal on the joining line. If the protest is made by a separate act, the statement of the protest will be made on the title submitted to the protest, unless it was necessary to proceed with the protest without possession of the title.
The protest must be made at the place of payment against the drawing or the one indicated for payment, even if they are not present. If the domicile of these persons cannot be found, the protest will be able to be made in any place, within the commune of the place of payment, after the election of the check holder. The incapacity of the drawee or the third party (the check may be payable at the domicile of a third party either in the locality where the drawee is domiciled or in another locality, provided that the third party is a banker) does not dispense with the obligation to protest against it. in case the third party is bankrupt, in which case the declaratory bankruptcy sentence is sufficient to exercise the regress.
The protest must include:
1. The year, month, day and hour in which he was trained;
2. Name and surname of the person requesting the protest;
3. The name of the person against whom the protest was made;
4. Indication of the place where he was trained, mentioning the research done;
5. The payment order with the answers received or the reasons why no answer was obtained.
The protest will be signed by the notary who trained it. The separate act must also include the exact transcript of the check.
The protest may be replaced, if the holder consents, by a declaration of refusal of payment, written and dated by title, signed by the drawer. The undated endorsement is considered to have been made before the declaration. This declaration, in order to have the effects of the protest, must be invested with the certain date, in the term established for the protest.
The notary state will have to keep a register of protests, in which they will be registered daily in the order of the date of the checks, showing the mentions required by law. A notice of non-payment of checks made during the week by the state notary will be sent to the court on the first day of the following week. This picture will show the date of the protest, the name and surname of the person against whom the protest was made, of the person who requested the protest and the maturity of the protested title. The tribunal will request the picture in the register of bill of exchange protests (provided in art. 72 of the bill of exchange law). The original of the protest made by a separate deed will be handed over to the holder of the check.
In case of alteration of the text of a check, the signatories after the alteration are kept in terms of the altered text; the previous signatories are kept in terms of the original text. When the title does not show or prove that the signature was placed before or after the alteration, it is presumed that it was placed before.
In case of loss, theft or destruction of the check, the holder will be able to notify the drawer and request the cancellation of the title by a request addressed to the president of the commercial court of the place where the check is payable.
The application must show the essentials of the check. The president of the tribunal, after examining the application and the elements produced, as well as the right of the holder, will issue an order as soon as possible, specifying the date of the check, declaring it void in the hands of anyone and authorizing payment of the check after 15 days from the publication of the order in the Official Gazette, if in the meantime the holder of the check has not objected.
The order must be notified to both the shooter and the shooter and published in the Official Gazette, at the request and at the expense of the petitioner. Notwithstanding the notice, the payment of the check made to the holder prior to the service of the order shall be released on the spot.
Within 15 days of the publication of the order in the Official Gazette, the check holder will be able to oppose this order, which will be communicated to the petitioner, the drawee and the drawer, together with their summons before the court of the place of payment. Until the fulfillment of the elements presented above, the petitioner will be able to exercise all the acts of preservation of his rights and may request the payment of the check, giving security or in the absence of security, the recording of the amount.
After the deadline, without opposition, or after the rejection of the opposition, by a final decision, the lost or stolen check has no effect. Anyone who has obtained the replacement of the check will be able to request payment of the check, presenting the cancellation order and the certificate of the respective registry for not filing the opposition in time, or presenting the final decision rejecting the opposition.
In case of loss, theft or destruction of a check, with the "non-transferable" clause, it cannot be canceled; however, the recipient will be able to ask the drawer and the drawer to replace the check with a duplicate.
The order or decision that remains final extinguishes any right deriving from the canceled check, without prejudice to the possible actions of the holder towards the one who obtained the cancellation.
The recourse actions of the possessor against the guarantors, the shooter or the other obligors, are prescribed by 6 months, counted from the expiration of the term of presentation. The recourse actions of the different obligors to pay the check, against each other, are prescribed by 6 months, counted from the day on which the obligor paid the check or from the day on which the recourse action was initiated against him. The interruption of the prescription only has effect against the one against whom the act of interruption was made.
It is an offense for a person to issue a check without authorization to draw, to issue a check without sufficient cash available, or after drawing the check before the time limits for presentation have elapsed, to order otherwise, in whole or in part. if available, issues a check with a false date or which lacks one of the essential elements necessary for a check.
Unauthorized banks or credit institutions, or those whose authorization has been revoked, that issue circular checks are fined.
Legislative framework
Regarding the bill of exchange, the legislative framework is represented, without being limited, to:
- Law on bills of exchange and promissory notes (Law no. 58 / 01.05.1934);
- NBR norm regarding the bill of exchange and promissory note (NBR norm no. 5 / 05.06.2008);
- Romanian Civil Code (Law no. 287 / 17.07.2009);
- Code of Civil Procedure (Law no. 134 / 01.07.2012);
- Romanian Commercial Code (Romanian Commercial Code of 10.05.1887).
The last legislative action regarding the check is represented by GEO 38/2008 for the amendment and completion of Law no. 59/1934 on the check in the idea that the check be processed also by electronic means.
The legal premises of issuing the check are represented by the agreement between the drawer and the banking company as well as by the coverage / provision (provision) representing the credit balance of the drawer's bank account or the account overdraft authorization granted by the bank (overdraft).
According to NBR requirements, check forms must include: separate series and number for each form (check tab), drawing elements (embedded watermark and complex network of lines, text or drawing in fluorescent colors, of which at least two colors be detected under ultraviolet light, invisible fibers with blue, green and red reflection, chemical treatment of paper and printing with water-insensitive inks or chemical agents, secret security elements chosen by each bank and known only to them, microtext, incorporation of a drawing which cannot be reproduced in black and white or color copiers, the band reserved for automatic processing (at the bottom of the tab and,last but not least, the approval of the NBR before printing the forms.
The terms banking company, credit company, credit institution (in the old texts described by the word "banker") are used to mean the legal persons provided for banking and credit.
The contents of the check, according to the legal provisions of our country, must include the name of "check" given in the title (expressed in the language used to write this title), the unconditional order to pay (make the transfer) the amount mentioned, the name of the who has to pay (draw) by default the name of the bank that has to pay, the place of payment, the date and place of issuance, the signature of the drawer (of the person issuing the check). Of course, these legal provisions are supplemented by the specifics of each bank in accordance with its operating formalities as well as the form of the check.
Any signature of a check must include: a. Clearly, the name and surname of the natural person or the name of the legal person or of the obligating entity; b. the handwritten signature of the natural person, respectively of the legal representatives or of the proxies of the obligating legal persons or of the representatives or proxies of other categories of entities that use such instruments.
The check is a document (a written order - by means of a standard form, provided by banks for check account holders) by which a person (drawer, issuer) gives an order to a bank (drawn), at which the person has one available in the account, to pay a certain amount of money determined to a third party (the beneficiary of the check), the payment being made on demand. In order to issue checks, holders must have accounts covering the amounts ordered by the check issued, on the basis of cash, bank deposit or on the basis of credit (the term provision is also used),
Whoever puts his signature on a check, as a representative of a person for whom he does not have the power to work, is personally held under the check and, if he has paid, he has the same rights that the alleged representative would have had. The same rule applies to the representative who has exceeded his power of attorney. Any person may be bound by check, by proxy, even if the warrant is provided in general terms, as regards the agent's right to issue or sign checks.
In addition, if the check bears the signatures of persons unable to be bound by the check, false signatures or signatures of imaginary persons, or signatures which for any other reason could not bind the persons who signed the check, or in whose name it was signed, however, the obligations of the other signatories remain valid.
In the absence of a special field, the place shown next to the name of the draw is considered a place of payment. If more than one place is shown next to the name of the draw, the check is payable at the first place shown. In their absence, or in any case, the check shall be payable at the place where the draw has its principal place of business. The check that does not show where it was issued is considered signed at the place shown next to the name of the shooter.
The shooter is responsible for payment. Any clause by which the shooter disclaims this liability shall be deemed unwritten.
From the point of view of the possible "completion" problems of the check, there are express legal clarifications related to the interpretation. So, if in a check the payment amount is written in letters and numbers, in case of difference the payment amount is the one written in letters. If the payment amount is entered more than once, either in letters or numbers, the difference in payment is the lowest.
If an incomplete check has been completed without taking into account the agreements reached, the non-observance of these agreements cannot be opposed to the holder, unless he has obtained the check in bad faith, or if the holder has made a serious mistake in obtaining the check.
The check is payable on sight. Any stipulation to the contrary is considered unwritten. The order to pay the amount of the check does not take effect until after the deadline for submission. In the absence of such an order, the drawee may pay even after the expiration of the term. The effects of the check are not achieved by the death of the drawer, his incapacity or the restriction of his capacity, which occurred after the check was issued. The drawee may request, by paying the check, that it be handed over to him with the mention "paid" by the holder. The owner cannot refuse a down payment. In the event of a partial payment, the drawee may request that payment be made on the check and that a receipt be given.
The main function of the check is the means of payment, the beneficiary of the payment can be a person (beneficiary) mentioned by the drawer (this being a payment check) or it can even be the drawer (being a withdrawal check).
Therefore, the debtor of a payment draws a check in favor of the creditor, the latter being able to collect the equivalent value of the check from the issuer's bank. In this case, the check may be:
- nominative (when the name of the beneficiary is indicated and the mention "not by order" is made, the payment being made only to the mentioned / nominated person, this being able to be transmitted only by assignment of common law);
- by order (when a certain natural or legal person is indicated as beneficiary - nominative character - being non-transferable or, only under certain conditions, sent by endorsement and paid to the last beneficiary indicated on the check - transmission by guarantee once the title is issued);
- to the bearer (without including the name of the beneficiary, the holder can collect its value at any time, like a banknote - transmission by simple tradition - there is the possibility to mention the beneficiary but it has effects only under certain special conditions).
It can also be used to obtain cash from banks (cash check - in this case the issuer draws a check in his name, such as a cash withdrawal from the account in the form of cash) or to defer payment (short-term credit from the moment of the birth of the payment obligation until the check is actually cashed, only in certain situations - the check is issued at a date when the provision is not constituted but will be constituted until the day of the check "credit" to the drawer, as in the case of bills of exchange, or the check is handed over by the beneficiary to his bank, for a discount or for collection,in both cases, the bank immediately credits the sender's account with the corresponding amount, without waiting for the cash to be drawn, thus granting a loan).
It can be deduced so far that the functions of the check are:
a. instrument for withdrawing from the credit balance of one's own bank account;
b. payment instrument with scriptural currency;
c. credit instrument.
Even if it is a credit instrument, it should be noted that any interest stipulation written in the check is considered unwritten.
The check can only be drawn on a banker. However, the check drawn and payable abroad is valid as a check even if the drawn is not a banker's. The check can only be issued if the drawer is available to draw, available on which he has the right to dispose by check, on the basis of an express or tacit agreement. The title issued without observing these conditions is still valid as a check. The check cannot be considered unacceptable - the acceptance statement on the check is considered unwritten. Any statement of certification, view or equivalent, written on the title and signed by the drawing,
The check may be made payable to a particular person with or without the express clause "on order", with the clause "not on order", or an equivalent expression "bearer", with the statement "or bearer", or an equivalent expression "bearer". ". The check without showing the payee is considered a payer's check.
The stipulated check payable to a certain person, with or without the express "promissory note" clause, is transferable by pledge. The stipulated check payable to a certain person, with the clause "not to order" or an equivalent expression, is transferable only in the form and with the effects of an ordinary assignment. The endorsement can be made even for the benefit of the shooter or any other obligor. They can pledge the check again.
The endorsement must be unconditional. Any condition to which it is subject shall be deemed unwritten. Partial endorsement is null. It is also null and void. The "bearer" endorsement is equivalent to a blank endorsement. The drawing for the benefit of the drawing has the value of a receipt, unless the drawing has several establishments and if the drawing is made for the benefit of a establishment other than the one on which the check was drawn. The endorsement must be written on the check; it must be written by the guarantor. The endorsement is valid even if the beneficiary is not mentioned or the guarantor has only put the signature (blank endorsement). In the latter case, the endorsement must be written on the check in order to be valid.
The guarantor transfers all the rights resulting from the check. If the endorsement is blank, the holder may: 1. fill it in with his or her own name or the name of another person; turn it on and without filling in the blank.
The guarantor, unless otherwise stated, is liable for payment. He can forbid a new endorsement; in this case he does not respond to the persons to whom the check was subsequently drawn.
The holder of a check transmissible by pledge is considered legitimate if he justifies his right by an uninterrupted series of pledges even if the last pledge is blank. Deleted endorsements are considered unwritten in this regard. If a blank endorsement is followed by another endorsement, its signatory is deemed to have obtained the blank endorsement check. The endorsement placed on a bearer's check makes the guarantor liable, in accordance with the provisions relating to regression; however, it does not turn the title into a promissory note. If a person has accidentally lost possession of a check, the holder in whose hands the check has been received, whether it is a bearer's check or a transferable check,
The drawee who pays a check, which can be guaranteed, is obliged to check the regularity of the succession of the guarantees, if not the authenticity of the signatures of the guarantors.
Persons against whom a check has been brought, on the basis of a check, may not oppose to the holder exceptions based on his personal relations with the drawer or previous holders, unless the holder acquiring the check knowingly worked to the detriment of the debtor.
If the guarantor includes the words "value for cover", "for collection", "for power of attorney", or any other statement that implies a simple mandate, the holder may exercise all the rights arising from the check, if he can only guarantee it as a power of attorney. In this case, the obligors can only oppose to the owner the exceptions that could have been opposed to the guarantor. The mandate contained in a "power of attorney" endorsement does not end with the death of the mandate, incapacity or restriction of its capacity.
The endorsement made after the protest or other equivalent finding, or after the expiration of the term of presentation, produces only the effects of an ordinary assignment. The undated endorsement is considered, until proven otherwise, to have been made before the protest or equivalent finding, or before the expiration of the previously presented term.
Apart from bearer checks, any check issued in Romania and payable in a state may be issued in several identical copies. When a check is issued in several copies, these copies must be numbered by the title of the check itself; without this, each copy is considered a separate check. Payment for one copy is a release, even if it is not stipulated that such payment cancels the effect of the other copies. The guarantor who sent the copies to various persons, as well as the following guarantors, are kept on the basis of all copies bearing their signature and which have not been returned to them.
In all cases (domestic or international payment) the check circuit starts with its issuance and the involvement of the beneficiary and of the bank or banks carrying out the payment operations. The next step is to deposit the check with one of the banks involved in the circuit, when it is checked (even if, in principle, it should not be issued without coverage) either through the media or simply by forwarding it. payment (when deposited at the issuer's bank) or sending the check to the issuer's bank.
The presentation and protest of a check can only be made on a working day. When the last day of the period prescribed by law, for the performance of the acts relating to the check and in particular for the protest or an equivalent act, is a public holiday, this period shall be extended until the first following working day. Intermediate public holidays are included in the calculation of the term. Within the time limits provided by law, the day from which they start to run shall not be counted. No legal or judicial grace periods are allowed.
It should be noted that this check circuit involves a longer or shorter period of time, which can reach 3-4 weeks, the operations requiring some time even in the case of using electronic funds transfer (EFT). This involved both the appearance of forward transactions, the checks being able to "carry" a "settlement deadline" starting from the moment of its issuance, after which the check is considered expired (the sanction being the loss of the right of recourse against guarantors and guarantors) , as well as the appearance of the legal provisions related to the validity of a check form issued (with general or interbank legislative character - in our country the check issued has a validity period of 15 days for its payment). The check issued in a foreign country and payable in Romania must be presented within 30 days, and if it is issued outside Europe within 70 days.
The deadlines are counted from the day shown on the check as the date of issue. If the check is payable abroad, the presentation deadline will be the one indicated by the law of the place of payment. If this law does not provide, the local rules will apply. When a check is drawn between two places with special calendars, the day of issue is replaced by the corresponding day of the place of payment. Another risk that may arise due to the longer settlement period is the lack of a guarantee against commercial risks, the bankruptcy of the issuer implying the loss of the validity of the check, not to mention the fact that the check may remain uncovered for other reasons.
When a check is payable in a currency that does not have a currency at the place of payment, the amount may be paid, within the time limit for presenting the check in the currency of the country, according to its value on the day of payment. If the payment has not been made on presentation, the holder may, at his choice, request that the amount be paid in the currency of the country, either after the exchange rate on the day of presentation or after the exchange rate on the day of payment. The value of the coin is determined by the wear and tear of the place of payment. The drawer may, however, stipulate that the amount of the payment will be calculated after an exchange rate indicated on the check. The rules shown here do not apply where the drawer has stipulated that payment must be made in a specific currency shown (the actual payment clause in foreign currency). If the amount is shown in a currency with the same denomination but a different value in the country of issue and in the country of payment, the indication is assumed to refer to the currency of the place of payment.
Presenting a check to a clearing office is equivalent to presenting a payment. The presentation of a check for payment can be made in original or by truncation. For the purposes of the legal provisions, truncation means the computer procedure which consists of the following successive operations: a. The transposition in electronic format of the relevant information from the original check; b. the reproduction of the image of the original check in electronic format and c. the transmission of the electronic information obtained through the operations at letter a. and b. to the paying credit institution.
The presentation on payment of a check by truncation produces the same legal effects as the presentation on payment of the original check, provided that the latter was issued in compliance with the provisions of the law. Credit institutions may use the truncation procedure, provided that there is a prior agreement between them in the context of a payment arrangement or an agreement consisting in their adherence to a payment system.
The relevant information for truncation, contained in the original check, is established according to the conventions.
The original check image is an electronic copy of the original check. The image of the original check must comply with the standards established according to the conventions. The moment of receipt by the paying credit institution, respectively by a payment system of the relevant information for truncation and of the electronic image of the respective check, according to the previous ones, constitutes the moment of presentation for payment. The transmission to the paying credit institution of the relevant information and the image of the check, by truncation, must be done in such a way as to ensure their authenticity and integrity, by using any technical procedures allowed by law.
When presenting a check with a truncated check, the credit institution is obliged to:
a. to verify that the original check complies in form and content with the legal provisions, including the regularity of the endorsement of the endorsements, except for the authenticity of the signatures of the drawer and the guarantors;
b. to ensure the accuracy and conformity of the truncation information transmitted electronically with the data in the original check, as well as the conformity of the check image with the original check.
The credit institution is liable for any loss suffered by non-compliance with its obligations under the law.
The total or partial refusal to pay of a check presented for payment by truncation is made in electronic form, by the paying credit institution. Based on the refusal, the credit institution holding the original check will enter:
a. the date of its presentation for payment, in order to ascertain whether the presentation was made within the legal terms;
b. the declaration of refusal, dated and signed by its legal or authorized representatives.
The statements written on the original check are proof of refusal to pay.
There are some operations that aim to increase the security of payment by check, the most used being the guarantee of a check downstream, for all or part of it - "requesting payment by check in advance". This form is often used when there are major risks, its use when it is not the case giving a negative impression that often harms contractual relations.
Payment of a check can be guaranteed by a down payment for all or only part of the amount. This guarantee can be given by a third party other than the drawer or even by a signer of the check. The endorsement is given by check. It is expressed in the words "downstream" or any equivalent form; it is signed by the guarantor. The endorsement must show for whom it is given. In the absence of this indication, he is considered to have been shot.
The guarantor is treated in the same way as the person for whom he endorsed. Its obligation is valid even if the obligation it has guaranteed is void for any reason other than a formal defect. When the guarantor pays the check, he acquires the rights resulting from the check against the person for whom he has guaranteed and against those who are held to the latter under the check.
Other "safety methods" are:
- "certified check" where, to cover the risk of non-payment, the creditor may request his client to issue a check guaranteed by his bank, by entering the word "certificate" on the check form, signing the check on the front, the bank guaranteeing the existence of the provision in the author's account until the expiration of the limitation period of 6 months, or of a specified express term;
- the "bank check" showing the highest payment guarantees, issued by the beneficiary's (exporter's) bank on his account;
- "check check" so called because it has two parallel bars on the front of the check form (general check - if there is no indication between the two lines or the mention "banker" or other equivalent term), this being settled between banks by bank transfer (cannot be paid in cash). If the name of a bank is specified between the two bars (special bar), the check can only be paid to that bank, in the current account of the beneficiary. In addition, the crossed check cannot be endorsed (unlike the unchecked check that can flow from one person to another through the endorsement); The general barrier can be transformed into a special barrier, but the special barrier cannot be transformed into a general barrier. Cutting (deleting) lines or the name of the registered banker is considered as if it had not been done. The general check check can only be paid by a banker or a drawing customer. The special check check can only be paid by the drawer to the banker on the check or, if it is drawn, to a customer of his. However, the indicated banker may resort to another banker for collection. A banker cannot obtain a cashed check from one of his clients or from another banker. He cannot collect it for persons other than these. The check bearing several special barriers may be paid by cash only in the case of two barriers, one of which for collection by means of a clearing office. The drawer and the banker who does not comply with the provisions are liable for the damage caused up to the amount of the check.
- "circular check" issued by a particular authorized banking company for the amount collected from the holder at the time of issue, payable at sight in any of the places shown alternately by the payer;
- "check payable on account" when the drawer or holder prohibits payment in cash, with the words "payable on account" or "transfer only", etc .;
- the "non-transferable check" which can be paid only to the recipient or, at his request, is credited to his current account, which is marked "non-transferable"; the payee may only draw the check from a banker for collection; the banker can't pass it on. The endorsements against this prescription are considered unwritten. Deleting the clause is considered inappropriate. The person who pays a non-transferable check to someone other than the recipient, or the banker's banknote for collection, is responsible for the payment made. The "non-transferable" clause must be put by the banker himself, at the client's request. The same clause can be put by a guarantor, with the same effects.
- "postal check" which is a banking service provided by the post office and is used for use in localities without branches, subsidiaries or branches of banks;
- the "traveler's check" by which the issuer assumes the obligation to pay by the formula "the drawer pays this traveler's check to him ... or at his order" being used in travel to make payments at hotels, restaurants, shops, banks, stations gasoline, etc. The drawer may make the payment of the check of existence subject to the title at the time of presentation of a second signature the same as that of the recipient.
A circular check is a promissory note issued by a bank or other credit institution, specifically authorized, for amounts available to them from the paychecks at the time of issue, payable on demand at any of the places indicated by the issuer. the bank or credit institution, authorized to issue circular checks, will have to deposit with the NBR, at the latest until the next day of issuance, a guarantee in government securities, guaranteed by the state, or lombardable at the NBR, calculated during the day, 40% of the value of the circular checks issued daily, a guarantee on which the holders of such checks have a special privilege.
The circular check will include:
1. the name "circular check" in the title;
2. the unconditional promise to pay a certain amount of money at sight;
3. name and surname of the recipient;
4. showing the date and place where the circular check was issued;
5. signature of the issuing bank or institution.
The title which lacks any of the conditions shown above has no value as a circular check.
The owner forfeits the right of recourse if he does not present the title to the payment within 30 days from the issue. The action against the issuer is prescribed by 3 years from the date of issue. The guarantor in favor of the issuer extinguishes the check.
The bank or credit institution may entrust the issuance of circular checks to a correspondent banker, provided, however, that the check issued bears the visa of the bank or authorized institute, and the correspondent signs as a representative of that bank or institute.
All provisions of the bill of exchange relating to the endorsement, payment, protest, return, prescription as well as those relating to securities with false signatures or of persons are applicable to the circular check, insofar as it is not derogated by law and is not incompatible with it. incapable. The provisions of the non-counter check on the cash-only, non-transferable and travel-only check will also apply to the circular check. In the procedure for canceling and replacing the circular check, the general provisions with the following changes will apply.
The request must be addressed to the president of the court where the issuer has an establishment. The notification of the order will be made by one of the establishments closest to the issuer, which, at the expense of the petitioner, will immediately notify all the establishments of the payment places where the check is payable.
The opposition will be made to the court that issued the order, communicating to the petitioner and to the representative of the issuer a copy of the opposition together with the summons. The issuer who paid the circular check, with all the notice about the loss or theft of the check, is not responsible for the payment made by an establishment which, due to a fact not imputable to the issuer, could not reach the notification of the cancellation order. In case of loss, theft or destruction of a non-transferable circular check, it will not be possible to use the cancellation procedure, but the recipient has the right to obtain, after 20 days from the notification, the payment of the check from the establishment where the notification was made.
The drawer, as well as the holder of a check, may prohibit payment in cash by inserting the words "payable into account", "bank transfer only", or other equivalent expression across the front of the check. In this case, the check can only be issued by the drawee in a script operation (credit to account, bank transfer or clearing). The script operation is equivalent to payment. Deleting the words "payable on account", "transfer only", is considered as if it had not been done. The drawdown that does not comply with the provisions is liable for the damage caused up to the amount of the check.
The newest method of guaranteeing checks is "eurocec" which is a check with a guarantee card. The specificity of these checks consists in the fact that the issuing bank issues together with the check book and a guarantee card that includes a series of data (account number, beneficiary name) that offers greater security and also guarantees the paying bank the collection of money from the issuing bank.
Regarding the traveler's checks, it can be mentioned that they are quite used in international tourism, this being a fixed value check, issued by banks (its format being a banknote / banknote type) and bought by tourists in view to make payments without the use of cash (for accommodation, transport, etc.).
In conclusion, the check is a payment instrument in the use of which some recommendations are required:
- for those who make payments: the check must be used for significant payments, at a distance, for which it is necessary to pre-establish a means of proof, to issue a check to be made only if there is a prior and sufficient provision in the account, to issue checks "blank "to be refused regardless of the possible reason for being invoked, the risks of such issuance being immense, most often of a criminal nature, the check book (form) must be unsigned (and / or stamped) and kept in a safe place of course, the theft or damage must be reported in writing immediately to the bank.
- for the beneficiaries of the check sheets (check payments): to check carefully if the check does not present technical anomalies and if it contains all the elements necessary for its validity, to ask the payer for the identity card whose data are written on the back of the check, not to count the bank's refusal to issue the check without coverage - the bank's refusal to make the payment in the absence of the provision retains the chance for the issuer to pay directly or to fund the payment account, provided the check tab does not expire because there are no provisions to extend its validity,without this affecting in any way the crime committed by the issuer -, to deposit the check at the bank within the legal limits of 8 days (for local settlements to the issuer) and 15 days (for other localities) - at the expiration of this term the check can no longer be used but the claim is not extinguished, because there is a legal limitation period of 3 years and in this case it will return to the need to extinguish it to the issuer of the check either by issuing another check form or by making payment in another form -,immediately notify the police when the bank refuses the check because it has been declared lost or stolen - to rule out complicity with the issuer or perpetrator of the theft.
The holder may exercise the right of recourse against the guarantors, the drawer and the other obligors, if the check presented in due time is not paid and if the refusal of payment is found: 1. either by an authentic act (protest), 2. or by a declaration of the drawing dated and written on the check, including the day on which it was presented, 3. or by a dated statement of a clearing office stating that the check was remitted to him in due time and that it had not been paid. The owner retains his rights against the shooter, although the check was not presented in a timely manner, or no statement was made equivalent to the protest. If, after the submission deadline,
The protest or equivalent finding must be made before the deadline for submission. If the presentation was made on the last day of the term, the protest or equivalent finding may be made on the first following working day.
The owner must notify his guarantor and the shooter of non-payment within 4 working days following the day of the protest, or the equivalent finding, or the day of the presentation, in case of a "no expense" stipulation. Each guarantor must, within two working days following the day on which he received the acknowledgment, notify his guarantor of the acknowledgment received, showing the names and addresses of those who made the previous notifications; it will follow the same way to the shooter. The terms shown here run from the receipt of the previous notice. When, according to the foregoing, an acknowledgment is made to a signatory of the check, the same notice must be given to the guarantor within the same period. In the event that a guarantor has not shown his address or has shown it in an illegible way, the acknowledgment made to the guarantor, which precedes him, is sufficient. He must prove that he made the notification within the prescribed time. This time limit shall be deemed to have been observed if a letter of formal notice has been delivered to the post office within the written time limit. He who does not make the acquittal within the term indicated above, does not forfeit his right to regress; he is liable, if any, for the damage caused by his negligence, but without the damages being able to exceed the amount of the check.
The drawer, guarantor, guarantor may, by stating "no expenses", "without protest" or any other equivalent expression, written on the check and signed, exempt the holder, for the exercise of the right of recourse, from rehearsing the protest or an equivalent finding. This stipulation does not exempt the holder from presenting the check within the established deadlines, nor from the notifications to be made. The proof of non-observance of the terms is in the charge of the one who opposes it to the possessor. If the stipulation is written by the shooter, it produces its effects towards all the signatories; if it is registered by a guarantor or guarantor, it produces its effects only in relation to it. If, with all the clause entered by the shooter, the owner makes the protest or the equivalent finding, the expenses remain in his charge. If the stipulation has been entered by a guarantor or guarantor, the costs of the protest or equivalent finding, if such an act has been committed, may be claimed from all signatories.
All those who were obliged by check are held jointly and severally by the holder. The owner has the right to prosecute everyone, individually or collectively, without being required to observe the order in which they were obliged. Any signatory who paid the check has the same right. The action brought against one of the obligors does not prevent the pursuit of the others, even if they are subsequent to the one against which the first action was taken.
The possessor may claim by way of recourse: 1. the amount shown in the unpaid check, 2. the legal interest on this amount, calculated on presentation, 3. the expenses of protest or equivalent finding, those of the acquaintance made as well as the other expenses. The person who paid the check in reverse may claim from his guarantors: 1. the full amount paid, 2. the legal interest on that amount, calculated from the day when he paid the amount, 3. the expenses he incurred. Any debtor against whom a right of recourse is exercised or could be exercised may, in return for payment, demand the delivery of the check, together with the protest or equivalent finding, and a return account paid.
When the presentation of the check, the protest, or the equivalent finding within the prescribed time limits, is prevented by an unavoidable obstacle (legal provision, fortuitous event or force majeure), these deadlines are extended. The owner is obliged to inform, without delay, the guarantor or the fortuitous or force majeure case and to make on the check the mention dated and signed by him of this notification. After the cessation of the fortuitous event or force majeure, the holder must, without delay, present the check for payment and, if necessary, make the protest or the equivalent finding. If the fortuitous event or force majeure lasts 15 days, counted from the date on which the holder notified his guarantor of the fortuitous event or force majeure, even if the notification is made before the expiry of the time limit for submission, the rights of of an equivalent finding. The purely personal cases of the holder or of the person whom he instructed to present the check, to make the protest or to make an equivalent finding are not considered fortuitous or force majeure cases. the rights of recourse may be exercised without the need for any presentation, protest or equivalent finding. The purely personal cases of the holder or of the person whom he instructed to present the check, to make the protest or to make an equivalent finding are not considered fortuitous or force majeure cases. the rights of recourse may be exercised without the need for any presentation, protest or equivalent finding. The purely personal cases of the holder or of the person whom he instructed to present the check, to make the protest or to make an equivalent finding are not considered fortuitous or force majeure cases.
In case of violation of the legal provisions regarding the check, the payment incident and / or the banking interdiction will invariably be reached.
The payment incident is the inability of a drawer (check payee) to operate and / or cash one or more check sheets. In general, the incident will occur with the deposit of the respective check sheet / sheets, at which point the bank of the drawer, the NBR and the bank of the drawer (issuer) will "enter" in a typical procedure (expressly specified by legislative regulations) initiated by the refusal. payment / prohibition of payment for various reasons. These are represented by:
- check issued without the authorization of the drawing;
- check refused due to total or partial lack of cash, in case of presentation for payment after the expiration of the presentation term;
- check refused due to total lack of cash, in case of presentation for payment before the deadline for presentation;
- check refused due to partial non-availability, in case of presentation for payment before the expiration of the presentation term;
- the drawer is unable to issue checks;
- the check presents different conditions regarding the payment, property dispute;
- check issued with a false date or which lacks a mandatory indication;
- circular check / traveler's check issued to the bearer;
- the check belongs to a circulation of instruments not approved by the NBR;
- check issued by a banknote drawer;
- the check belongs to a set of instruments that has been withdrawn from circulation;
- bankruptcy of the check drawer declared lost, stolen, destroyed;
- lack of mandate of the signatory of the defect to complete the entries on the check (with reference to the modification of some elements on the check, incorrect registration or lack of an account number, inconsistency of the signatures).
The banking ban is "the regime imposed by the bank on an account holder who prohibits the issuance of checks for a period of one year, in accordance with mutual commitments applicable to the payment of checks, as a result of major payment incidents, namely:
- issuing a check without drawing authorization;
- the refusal of the check following the finding by the drawn bank of the partial or total lack of cash in the drawer's account, if he otherwise disposes, in whole or in part, of the cash he had, before the deadline set for presentation;
- the issuance of a check with a false date or which lacks one of the obligatory mentions;
- issuing a circular check or a "bearer" traveler's check;
- issuing a check by a banknote drawer ".
We must not forget that the interbank procedures "initiated" by the payment incident often have much more serious repercussions than the banking interdiction because, on the way of resolving the born dispute, the legal obligation of the intervention of the Territorial Court intervenes. It will agree on the legality of any payment incident, upon mandatory notification from the NBR, and, if necessary, notify the Prosecutor's Office for the "settlement" of criminal incidents. In detail, the check law presents the following ...
The bill of exchange cannot be exercised between several debtors who have an equal situation in the check; the relations between these persons will be governed by the rules relating to joint and several obligations.
The check has the value of an enforceable title for capital and accessories. The executory formula is shown in art. 269 C.Proc.Civ. (The new Code of Civil Procedure refers to art. 665 para. (7)). Competent to invest the check with executory formula is the state notary (court). The check issued abroad has the same enforceable effects, if they are allowed by the law of the place where the check was issued. The writ of execution must include the exact transcript of the check or protest, as well as the other documents from which the amount due results.
Within 5 days of receiving the summons, the debtor may oppose the execution. The opposition will be introduced in court in the constituency of which is the state notary (court) that invested the check with executory formula. This court will judge the opposition as a matter of urgency and especially before any other cause. The court will only be able to suspend enforcement if the opponent does not recognize the signature, falsely register, or does not recognize the power of attorney. In case of suspension of execution, the creditor will be able to obtain insurance measures.
In the proceedings initiated either by way of action or by way of opposition, the debtor will be able to oppose only the exceptions of nullity of the title as well as those that are not stopped by the specifications related to the personal connections. Personal exceptions must be expedited and always based on written evidence. Exceptions must be invoked at the first appearance. The first term of appearance means the first term of the first instance, when the procedure is fulfilled, the parties may oppose conclusions on the merits, even if the defendant or opponent does not appear.
If from the report which gave rise to the issue or transmission of the check, a causal action derives, it remains in force, with all the issuance or transmission of the check, unless the novation is proved. The holder of the check can only exercise the causal action by offering the debtor the restitution of the check, depositing it at the registry of the competent court and at the same time justifying the fulfillment of the necessary formalities for the preservation towards the debtor of the regression actions that may belong to him.
When the holder of the check has lost the bill of exchange action against all the obligors and has no causal action against them, he can act on the drawer who did not have the cash on hand, or has been unjustly enriched to his detriment. It can exercise the same action under the same conditions, and against guarantors.
The protest is made at the state notary (court). Witness assistance is not required for the protest. The protest can be filed by a separate document or on the original of the check itself or on its duplicate. This addition can be added by the notary. If the protest ends in addition, the one who concluded it must put the official seal on the joining line. If the protest is made by a separate act, the statement of the protest will be made on the title submitted to the protest, unless it was necessary to proceed with the protest without possession of the title.
The protest must be made at the place of payment against the drawing or the one indicated for payment, even if they are not present. If the domicile of these persons cannot be found, the protest will be able to be made in any place, within the commune of the place of payment, after the election of the check holder. The incapacity of the drawee or the third party (the check may be payable at the domicile of a third party either in the locality where the drawee is domiciled or in another locality, provided that the third party is a banker) does not dispense with the obligation to protest against it. in case the third party is bankrupt, in which case the declaratory bankruptcy sentence is sufficient to exercise the regress.
The protest must include:
1. The year, month, day and hour in which he was trained;
2. Name and surname of the person requesting the protest;
3. The name of the person against whom the protest was made;
4. Indication of the place where he was trained, mentioning the research done;
5. The payment order with the answers received or the reasons why no answer was obtained.
The protest will be signed by the notary who trained it. The separate act must also include the exact transcript of the check.
The protest may be replaced, if the holder consents, by a declaration of refusal of payment, written and dated by title, signed by the drawer. The undated endorsement is considered to have been made before the declaration. This declaration, in order to have the effects of the protest, must be invested with the certain date, in the term established for the protest.
The notary state will have to keep a register of protests, in which they will be registered daily in the order of the date of the checks, showing the mentions required by law. A notice of non-payment of checks made during the week by the state notary will be sent to the court on the first day of the following week. This picture will show the date of the protest, the name and surname of the person against whom the protest was made, of the person who requested the protest and the maturity of the protested title. The tribunal will request the picture in the register of bill of exchange protests (provided in art. 72 of the bill of exchange law). The original of the protest made by a separate deed will be handed over to the holder of the check.
In case of alteration of the text of a check, the signatories after the alteration are kept in terms of the altered text; the previous signatories are kept in terms of the original text. When the title does not show or prove that the signature was placed before or after the alteration, it is presumed that it was placed before.
In case of loss, theft or destruction of the check, the holder will be able to notify the drawer and request the cancellation of the title by a request addressed to the president of the commercial court of the place where the check is payable.
The application must show the essentials of the check. The president of the tribunal, after examining the application and the elements produced, as well as the right of the holder, will issue an order as soon as possible, specifying the date of the check, declaring it void in the hands of anyone and authorizing payment of the check after 15 days from the publication of the order in the Official Gazette, if in the meantime the holder of the check has not objected.
The order must be notified to both the shooter and the shooter and published in the Official Gazette, at the request and at the expense of the petitioner. Notwithstanding the notice, the payment of the check made to the holder prior to the service of the order shall be released on the spot.
Within 15 days of the publication of the order in the Official Gazette, the check holder will be able to oppose this order, which will be communicated to the petitioner, the drawee and the drawer, together with their summons before the court of the place of payment. Until the fulfillment of the elements presented above, the petitioner will be able to exercise all the acts of preservation of his rights and may request the payment of the check, giving security or in the absence of security, the recording of the amount.
After the deadline, without opposition, or after the rejection of the opposition, by a final decision, the lost or stolen check has no effect. Anyone who has obtained the replacement of the check will be able to request payment of the check, presenting the cancellation order and the certificate of the respective registry for not filing the opposition in time, or presenting the final decision rejecting the opposition.
In case of loss, theft or destruction of a check, with the "non-transferable" clause, it cannot be canceled; however, the recipient will be able to ask the drawer and the drawer to replace the check with a duplicate.
The order or decision that remains final extinguishes any right deriving from the canceled check, without prejudice to the possible actions of the holder towards the one who obtained the cancellation.
The recourse actions of the possessor against the guarantors, the shooter or the other obligors, are prescribed by 6 months, counted from the expiration of the term of presentation. The recourse actions of the different obligors to pay the check, against each other, are prescribed by 6 months, counted from the day on which the obligor paid the check or from the day on which the recourse action was initiated against him. The interruption of the prescription only has effect against the one against whom the act of interruption was made.
It is an offense for a person to issue a check without authorization to draw, to issue a check without sufficient cash available, or after drawing the check before the time limits for presentation have elapsed, to order otherwise, in whole or in part. if available, issues a check with a false date or which lacks one of the essential elements necessary for a check.
Unauthorized banks or credit institutions, or those whose authorization has been revoked, that issue circular checks are fined.
Legislative framework
Regarding the bill of exchange, the legislative framework is represented, without being limited, to:
- Law on bills of exchange and promissory notes (Law no. 58 / 01.05.1934);
- NBR norm regarding the bill of exchange and promissory note (NBR norm no. 5 / 05.06.2008);
- Romanian Civil Code (Law no. 287 / 17.07.2009);
- Code of Civil Procedure (Law no. 134 / 01.07.2012);
- Romanian Commercial Code (Romanian Commercial Code of 10.05.1887).
Dorin, Merticaru