Английский язык для юристов. Предпринимательское право

to extend credit. It is often used in combination with a bill of lading, which is a receipt given by a freight company to someone who ships goods. If it is a sight draft, the buyer must pay the draft immediately to receive the bill of lading from the bank. If it is a time draft, the buyer must accept the draft to receive the bill of lading from the bank. The freight company will not release the goods to the buyer unless the buyer has the bill of lading.

Discounting means that the bank will buy the instrument at a price below its face amount with the aim of ultimately collecting the face amount.

A domestic bill of exchange is a draft that is drawn and payable in the country of origin. A draft that is drawn in one country but is payable in another is called an international bill of exchange, or foreign draft.

A note (often called a promissory note) is a written promise by one party, called the maker, to pay money to the order of another party, called the payee. In contrast with drafts, notes are promise instruments rather than order instruments, and they involve only two parties instead of three. They are used by people who loan money or extend credit as evidence of debt. When two or more parties sign a note, they are called comakers.

A demand note is payable whenever the payee demands payment. A time note, on the other hand, is payable at some future time, on a definite date named in the instrument. Unless a note is payable in installments, the principal (face value) of the note plus interest must be paid on the date that it is due. In an installment note, the principal together with interest on the unpaid balance is payable in installments (series of payments) at specified times.

A certificate of deposit is an acknowledgment by a bank of the receipt of money and promise to pay the money back on the due date, usually with interest.

In addition to drawers of drafts and checks, makers of notes, and payees of both types of instruments, there are other parties to commercial paper. They are the bearer, the holder, the holder in due course, the endorser, the endorsee, and the acceptor.

A bearer is a person who is in possession of a negotiable instrument that is payable to bearer or to cash. A person who is in possession of an instrument that has been indorsed in blank (by the payee's signature alone) is also a bearer. A holder is a person who is in possession of a negotiable instrument that is issued or indorsed to that person's order or to bearer. One who is a bearer is always a holder; however, one who is a holder may or may not be a bearer. A holder in due course is a holder of a negotiable instrument who is treated as favored and is given immunity from certain defenses.

An endorser is a person who indorses a negotiable instrument. This is done in most cases by signing one's name on the back of the paper.

An endorsee is a person to whom a draft, note, or other negotiable instrument is transferred by endorsement. An acceptor is a drawee of a draft who has promised to honor the draft as presented by signing it on its face.

To be negotiable, an instrument must be signed by the maker or drawer, and must contain no conditions that might in any way affect its payment.

An instrument is conditional, and thus not negotiable, if it states that it is subject to any other agreement; paid only out of a particular fund; charged to a particular account. An instrument may state that it «arises out of» another agreement without being conditional.

In addition to being unconditional, a negotiable instrument must contain a promise to pay (as in a note) or an order to pay (as in a draft).

A negotiable instrument must be payable in a fixed (clearly known) amount of money even though it is to be paid with stated interest or by stated installments; with stated different rates of interest before and after default or a specified date; with a stated discount or addition, if paid before or after the date fixed for payment; with exchange or less exchange, whether at a fixed rate or at the current rate; or with costs of collection, an attorney's fee, or both upon default.

Negotiable instruments must be made payable on demand or at a definite time. This requirement makes it possible to determine when the debtor or promisor can be compelled to pay. Without this information, the present value of an instrument cannot be determined.

Demand Paper is an instrument is payable on demand when it so states, or when it is payable «on sight» or «on presentation». The key characteristic of demand instruments is that the holder can require payment at any time by making the demand upon the person who is obligated to pay.

Certainty as to the time of payment of an instrument is satisfied if it is payable on or before a definite date. Instruments payable at a fixed period after a stated date or at a fixed period after sight are also considered to be payable at a definite time papers.

An acceleration clause on the face of an instrument hastens the maturity date. One such example reads, «In case of default in payments of interest (or of an installment of the principal), the entire note shall become due and payable.»

Extension clauses give the maker of a note the opportunity to extend the payment date to a further definite time. For example, a maker may make a note payable in six months but may include the right to extend it to one year without loss of negotiability.

The chief characteristic of a negotiable instrument is its capacity to circulate freely as an instrument of credit. This function is achieved and the intention of the maker (i.e., ease of transferability and payment of the amount indicated to a holder) is expressed by the words to the order of or to bearer. They are called the words of negotiability. Except for checks, instruments not payable to order or to bearer are not negotiable. Law allows checks (but not other instruments) that are not payable to order or to bearer to be negotiable.

An instrument is payable to order when it states that it is payable to the order of any person, i.e., the maker or drawer; the drawee; a payee who is not the maker, drawer, or drawee; two or more payees; an estate, trust, or fund; an office or officer by title; or a partnership or unincorporated association, with reasonable certainty.

An instrument is payable to bearer when it states that it is payable to bearer or the order of bearer, a specified person or bearer, cash or the order of cash, or any other indication that does not designate a specific payee.

Any instrument lacking one or more elements of negotiability, however, cannot be enforced until it is completed. Handwritten terms control typewritten and printed terms, and typewritten terms control printed terms. Words control figures, except where words are ambiguous (capable of being understood in more than one way). The numbering of, or the failure to number, an instrument does not affect its negotiability.

Exercise 1. Comprehension questions:

1. Identify the purpose of commercial paper.

2. Explain the concept of negotiability.

3. What are the types of negotiable instruments?

4. Give definition of a draft.

5. How are the parties, relating to a draft, called?

6. Identify different kinds of drafts.

7. Explain what a certificate of deposit means.

8. What are the requirements for negotiable instruments?

9. What elements of negotiable instruments may be omitted?

Exercise 2. Find in the text English equivalents to the following:

Акцептант; переводной вексель; вкладной сертификат; лицо, берущее на себя обязательство уплатить долг в случае несостоятельности должника; простой вексель; дисконт; переводный вексель; лицо, на которое выставлена тратта; векселедатель; лицо, в пользу которого сделана передаточная надпись; лицо, делающее передаточную надпись; оборотный документ; извещение; долговая расписка.

Exercise 3. Consult recommended dictionaries and give words or phrases to the following definitions: