![]() |
Home
| Databases
| WorldLII
| Search
| Feedback
Fiji Legislation |
LAWS OF FIJI
Ed. 1978]
CHAPTER 227
BILLS OF EXCHANGE ACT 1978
ARRANGEMENT OF SECTIONS
PART I - PRELIMINARY
SECTION
1.
Short
title.
2.
Interpretation.
PART II - BILL OF EXCHANGE
Form and Interpretation
3.
Bill of exchange
defined.
4.
Inland and foreign
Bill.
5.
Effect of where different parties to bill are the same
person.
6.
Address to
drawee.
7.
Certainty required as to
payee.
8.
What bills are
negotiable.
9.
Sum
payable.
10.
Bill payable on
demand.
11.
Bill payable at the future
time.
12.
Omission of date in bill payable after
date.
13.
Ante-dating and
post-dating.
14.
Computation of time
payment.
15.
Case of
need.
16.
Optional stipulations by drawer or
endorser.
17.
Definition and requests of
acceptance.
18.
Time for
acceptance.
19.
General and qualified
acceptances.
20.
Inchoate
instruments.
21.
Delivery.
Capacity and Authority of Parties
22.
Capacity of
parties.
23.
Signature essential to
liability.
24.
Forge or unauthorised
signature.
25.
Procuration
signature.
26.
Person signing as agent or in representative capacity.
The Consideration for a Bill
27.
Value and holder for
value.
28.
Accommodation bill or
party.
29.
Holder in due
course.
30.
Presumption of value and good faith.
Negotiation of Bills
31.
Negotiation of
bill.
32.
Requisites of a valid
endorsement.
33.
Conditional
endorsement.
34.
Endorsement in blank and special
endorsement.
35.
Restrictive
endorsement.
36.
Negotiation of overdue or dishonoured
bill.
37.
Negotiation of bill to party already liable
thereon.
38.
Rights of the holder.
General Duties of the Holder
39.
Where presentment for acceptance is
necessary.
40.
Time for presenting bill payable after
sight.
41.
Rules as to presentment for acceptance and excuses for
non-presentment.
42.
Non-acceptance.
43.
Dishonour by non-acceptance and its
consequences.
44.
Duties as to qualified
acceptances.
45.
Rules as to presentment for
payment.
46.
Excuses for delay or non-presentment for
payment.
47.
Dishonour by
non-payment.
48.
Notice of dishonour and effect of
non-notice.
49.
Rules as to notice of
dishonour.
50.
Excuses for non-notice and
delay.
51.
Noting or protest of
bill.
52.
Duties of holder as regards drawee or acceptor.
Liabilities of Parties
53.
Funds in hands of
drawee
54.
Liability of
acceptor.
55.
Liability of drawer or
endorser.
56.
Stranger signing bill liable as
endorser.
57.
Measure of damages against parties to dishonoured
bill.
58.
Transferor by delivery and transferee.
Discharge of Bill
59.
Payment in due
course.
60.
Banker paying demand draft whereon endorsement is
forged.
61.
Acceptor the holder at
maturity.
62.
Express
waiver.
63.
Cancellation.
64.
Alteration of bill.
Acceptance and Payment for Honour
65.
Acceptance for honour supra
protest.
66.
Liability of acceptor for
honour.
67.
Presentment to acceptor for
honour.
68.
Payment for honour supra protest.
Lost Instruments
69.
Holder's right to duplicate of lost
bill.
70.
Action on lost bill.
Bill in a Set
71.
Rules as to set.
Conflict of Laws
72.
Rules where laws conflict.
PART III - CHEQUES ON A BANKER
73.
Cheque
defined.
74.
Presentation of cheque for
payment.
75.
Revocation of banker's authority.
Crossed Cheques
76.
General and special crossings
defined.
77.
Crossing by drawer or after
issue.
78.
Crossing a material part of
cheque.
79.
Duties of banker as to crossed
cheques.
80.
Protection to banker and drawer where cheque is
crossed.
81.
Effect of crossing on
holder.
82.
Sections 76 to 81 also to apply to other instruments.
Endorsement of Cheques
83.
Protection of bankers paying "endorsed or irregularly endorsed
cheques.
84.
Rights of bankers collecting cheques unendorsed by
holders.
85.
Unendorsed cheque as evidence of
payment.
86.
Protection of bankers collecting payment of
cheques.
87.
Effect of sections 83 to 86 inclusive.
PART IV - PROMISSORY NOTES
88.
Promissory note
defined.
89.
Delivery
necessary.
90.
Joint and several
notes.
91.
Note payable on
demand.
92.
Presentment of note for
payment.
93.
Liability of
maker.
94.
Application of Part II to
notes.
95.
Thumb print to be affixed and form of alteration in certain
cases.
96.
Note inadmissible in evidence unless duly made.
PART V - SUPPLEMENTARY
97.
Good
faith.
98.
Signature.
99.
Computation of
time.
100.
When noting equivalent to
protest.
101.
Protest when notary not
accessible.
102.
Dividend warrants may be
crossed.
103.
Savings.
------------------------------------------------------------
Ordinances
Nos. 3 of 1891, 6 of 1903, 2 of
1945,
7
of 1966, Acts Nos. 7 of 1970, 17 of 1972
AN
ACT TO CODIFY THE LAW RELATING TO BILLS OF
EXCHANGE,
CHEQUES,
AND PROMISSORY NOTES
[20th July, 1891.]
PART I-PRELIMINARY
Short title
1.
This Act may be cited as the Bills of Exchange Act.
Interpretation
2.
In this Act, unless the context otherwise requires:
"acceptance" means an acceptance completed by delivery or notification;
"action" includes counter-claim and set-off;
"banker" includes a body of persons whether incorporated or not who carry on the business of banking;
"bankrupt" includes any person whose estate is vested in a trustee or assignee under the law for the time being in force relating to bankruptcy;
"bearer" means the person in possession of a bill or note which is payable to bearer;
"bill" means bill of exchange;
"delivery" means transfer of possession, actual or constructive, from one person to another;
"endorsement" means an endorsement completed by delivery;
"holder" means the payee or endorsee of a bill or note who is in possession of it, or the bearer thereof;
"issue" means the first delivery of a bill or note, complete in form, to a person who takes it as holder;
"note" means promissory note;
"person" includes a body of persons whether incorporated, or not;
"value" means valuable consideration;
"written" includes printed; and
"writing" includes print.
PART II - BILLS OF EXCHANGE
Form and Interpretation
Bill of exchange defined
3.-(1)
A bill of exchange is an unconditional order in writing, addressed by one person
to another, signed by the person giving it,
requiring the person to whom it is
addressed to pay on demand or at a fixed or determinable future time a sum
certain in money to
or to the order of a specified person, or to
bearer.
(2)
An instrument which does not comply with these conditions, or which orders any
act to be done in addition to the payment of money,
is not a bill of
exchange.
(3)
An order to pay out of a particular fund is not unconditional within the meaning
of this section; but an unqualified order to
pay, coupled with:
(a) an indication of a particular fund out of which the drawee is to reimburse himself or a particular account to be debited with the amount; or
(b) a statement of the transaction which gives rise to the bill,
is
unconditional.
(4)
A bill is not invalid by reason:
(a) that it is not dated;
(b) that it does not specify the value given or that any value has been given therefor;
(c) that is does not specify the place where it is drawn or the place where it is payable.
Inland and foreign bills
4.-(1)
An inland bill is a bill which is or on the face of it purports to
be-
(a) both drawn and payable within Fiji or within the Commonwealth of Australia, New Zealand or Papua; or
(b) drawn within Fiji or within the Commonwealth of Australia, New Zealand or Papua upon some person resident therein.
Any
other bill is a foreign
bill.
(2)
Unless the contrary appear on the face of the bill the holder may treat it as an
inland bill.
Effect where different parties to bill are the same person
5.-(1)
A bill may be drawn payable to, or to the order of, the drawer; or it may be
drawn payable to, or to the order of, the
drawee.
(2)
Where in a bill the drawer and drawee are the same person, or where the drawee
is a fictitious person or a person not having capacity
to contract, the holder
may treat the instrument, at his option, either as a bill of exchange or as a
promissory note.
Address to drawee
6.-(1)
The drawee must be named or otherwise indicated in a bill with reasonable
certainty.
(2)
A bill may be addressed to two or more drawees whether they are partners or not,
but an order addressed to two drawees in the
alternative or to two or more
drawees in succession is not a bill of exchange.
Certainty required as to payee
7.-(1)
Where a bill is not payable to bearer, the payee must be named or otherwise
indicated therein with reasonable
certainty.
(2)
A bill may be made payable to two or more payees jointly, or it may be made
payable in the alternative to one or two, or one or
some of several payees. A
bill may also be made payable to the holder of an office for the time
being.
(3)
Where the payee is a fictitious or non-existing person the bill may be treated
as payable to bearer.
What bills are negotiable
8.-(1)
When a bill contains words prohibiting transfer, or indicating an intention that
it should not be transferable, it is valid
as between the parties thereto, but
is not
negotiable.
(2)
A negotiable bill may be payable either to order or to
bearer.
(3)
A bill is payable to bearer which is expressed to be so payable, or on which the
only or last endorsement is an endorsement in
blank.
(4)
A bill is payable to order which is expressed to be so payable, or which is
expressed to be payable to a particular person, and
does not contain words
prohibiting transfer or indicating an intention that it should not be
transferable.
(5)
Where a bill, either originally or by endorsement, is expressed to be payable to
the order of a specified person, and not to him
or his order, it is nevertheless
payable to him or his order at his option.
Sum payable
9.-(1)
The sum payable by a bill is a sum certain within the meaning of this Act,
although it is required to be paid:
(a) with interest;
(b) by stated instalments;
(c) by stated instalments, with a provision that upon default in payment of any instalment the whole shall become due;
(d) according to an indicated rate of exchange or according to a rate of exchange to be ascertained as directed by the bill.
(2)
Where the sum payable is expressed in words and also in figures, and there is a
discrepancy between the two, the sum denoted by
the words is the amount
payable.
(3)
Where a bill is expressed to be payable with interest, unless the instrument
otherwise provides, interest from the date of the
bill, and if the bill is
undated from the issue thereof.
Bill payable on demand
10.-(1)
A bill is payable on demand-
(a) which is expressed to be payable on demand, or at sight, or on presentation; or
(b) in which no time for payment is expressed.
(2)
Where a bill is accepted or endorsed when it is overdue, it shall, as regards
the acceptor who so accepts, or any endorser who
so endorses it, be deemed a
bill payable on demand.
Bill payable at a future time
11.-(1)
A bill is payable at a determinable future time within the meaning of this Act
which is expressed to be payable-
(a) at a fixed period after date or sight;
(b) on or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening may be uncertain.
(2)
An instrument expressed to be payable on a contingency is not a bill, and the
happening of the event does not cure the defect.
Omission of date in bill payable after date
12.
Where a bill expressed to be payable at a fixed period after date is issued
undated, or where the acceptance of a bill payable
at a fixed period after sight
is undated, any holder may insert therein the true date of issue or acceptance,
and the bill shall
be payable
accordingly:
Provided
that-
(a) where the holder in good faith and by mistake inserts a wrong date; and
(b) in every case where a wrong date is inserted, if the bill subsequently comes into the hands of a holder in due course the bill shall not be avoided thereby, but shall operate and be payable as if the date so inserted had been the true date.
Ante-dating and post-dating
13.-(1)
Where a bill or acceptance or any endorsement on a bill is dated, the date
shall, unless the contrary be proved, be deemed
to be the true date of the
drawing, acceptance or endorsement, as the case may
be.
(2)
A bill is not invalid by reason only that it is ante-dated or post-dated, or
that it bears date on a Sunday.
Computation of time of payment
14.
Where a bill is not payable on demand the day on which it falls due is
determined as follows:
(a) three days, called days of grace, are, in every case where the bill itself does not otherwise provide, added to the time of payment as fixed by the bill, and the bill is due and payable on the last day of grace:
Provided that when the last day of grace falls on-
(i) a Saturday or Sunday; or
(ii) a bank holiday under the Public Holidays Act; or
(Cap. 101.)
(iii) a day appointed as a day of public rejoicing or mourning,
the bill is due and payable on the succeeding business day;
(Amended by 17 of 1972, s. 2.)
(b) where a bill is payable at a fixed period after date; after sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the day of payment;
(c) where a bill is payable at a fixed period after sight, the time begins to run from the date of the acceptance if the bill be accepted, and from the date of noting or protest if the bill be noted or protested for non-acceptance, or for non-delivery;
(d) the term "month" in a bill means calendar month.
Case of need
15.
The drawer of a bill and any endorser may insert therein the name of a person to
whom the holder may resort in case of need, that
is to say, in case the bill is
dishonoured by non-acceptance or non-payment. Such person is called the referee
in case of need. It
is in the opinion of the holder to resort to the referee in
case of need or not as he may think fit.
Optional stipulations by drawer or endorser
16.
The drawer of a bill, and any endorser, may insert therein an express
stipulation-
(a) negativing or limiting his own liability to the holder;
(b) waiving as regards himself some or all of the holder's duties.
Definition and requisites of acceptance
17.-(1)
The acceptance of a bill is the signification by the drawee of his assent to the
order of the
drawer.
(2)
An acceptance is invalid unless it complies with the following conditions,
namely:-
(a) it must he written on the bill and he signed by the drawee. The mere signature of the drawee without additional words is sufficient;
(b) it must not express that the drawee will perform his promise by any other means than the payment of money.
Time for acceptance
18.
A bill may be accepted-
(a) before it has been signed by the drawer while otherwise incomplete;
(b) when it is overdue, or after it has been dishonoured by a previous refusal to accept, or by non-payment;
(c) when a bill payable after sight is dishonoured by non-acceptance, and the drawee subsequently accepts it the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of first presentment to the drawee for acceptance.
General and qualified acceptances
19.-(1)
An acceptance is either-
(a) general; or
(b) qualified.
(2)
A general acceptance is assent without qualification to the order of the drawer.
A qualified acceptance in express terms varies
the effect of the bill as
drawn.
(3)
In particular an acceptance is qualified which is-
(a) conditional, that is to say, which makes payment by the acceptor dependent on the fulfilment of a condition therein stated;
(b) partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn;
(c) local, that is to say an acceptance to pay only at a particular specified place. An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only and not elsewhere;
(d) qualified as to time;
(e) the acceptance of some one or more of the drawees but not of all.
Inchoate instruments
20.-(1)
Where a simple signature on a blank stamped paper is delivered by the signer in
order that it may be converted into a bill,
it operates as a prima facie
authority to fill it up as a complete bill for any amount the stamp will cover,
using the signature
for that of the drawer, or the acceptor, or an endorser;
and, in like manner, when a bill is wanting in any material particular,
the
person in possession of it has a prima facie authority to fill up the omission
in any way he thinks
fit.
(2)
In order that any such instrument when complete may be enforceable against any
person who becomes a party thereto prior to its
completion, it must be filled up
within a reasonable time, and strictly in accordance with the authority given.
Reasonable time for
this purpose is a question of
fact:
Provided
that if any such instrument after completion is negotiated to a holder in due
course it shall be valid and effectual for
all purposes in his hands, and he may
enforce it as if it had been filled up within a reasonable time and strictly in
accordance
with the authority given.
Delivery
21.-(1)
Every contract on a bill, whether it be the drawer's, the acceptor's, or an
endorser's, is incomplete and revocable, until
delivery of the instrument in
order to give effect
thereto:
Provided
that where an acceptance is written on a bill, and the drawee gives notice to or
according to the directions of the person
entitled to the bill that he has
accepted it, the acceptance then becomes complete and
irrevocable.
(2)
As between immediate parties, and as regards a remote party other than a holder
in due course, the delivery-
(a) in order to be effectual must be made either by or under the authority of the party drawing, accepting or endorsing, as the case may be;
(b) may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the bill,
but
if the bill be in the hands of a holder in due course a valid delivery of the
bill by all parties prior to him so as to make them
liable to him is
conclusively
presumed.
(3)
Where a bill is no longer in the possession of a party who has signed it as
drawer, acceptor, or endorser, a valid and unconditional
delivery by him is
presumed until the contrary is proved.
Capacity and Authority of Parties
Capacity of parties
22.-(1)
Capacity to incur liability as a party to a bill is co-extensive with capacity
to
contract:
Provided
that nothing in this section shall enable a corporation to make itself liable as
drawer, acceptor; or endorser of a bill
unless it is competent to it so to do
under the law for the time being in force relating to
corporations.
(2)
Where a bill is drawn or endorsed by an infant, minor, or corporation having no
capacity or power to incur liability on a bill,
the drawing or endorsement
entitles the holder to receive payment of the bill, and to enforce it against
any other party thereto.
Signature essential to liability
23.
No person is liable as drawer, endorser, or acceptor of a bill who has not
signed it as
such:
Provided
that-
(a) where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name;
(b) the signature of the name of a firm is equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm.
Forged and unauthorised signature
24.
Subject to the provisions of this Act, where a signature on a bill is forged or
placed thereon without the authority of the person
whose signature it purports
to be, the forged or unauthorised signature is wholly inoperative, and no right
to retain the bill or
give a discharge therefor to or enforce payment thereof
against any party thereto can be acquired through, or under that signature,
unless the party against whom it is sought to retain or enforce payment of the
bill is precluded from setting up the forgery or want
of
authority:
Provided
that nothing in this section shall affect the ratification of an unauthorised
signature not amounting to a forgery.
Procuration signature
25.
A signature by procuration operates as notice that the agent has but a limited
authority to sign, and the principal is only bound
by such signature if the
agent in so signing was acting within the actual limits of his
authority.
Person signing as agent or in representative capacity
26.-(1)
Where a person signs a bill as drawer, endorser, or acceptor, and adds words to
his signature,. indicating that he signs for
on behalf of a principal, or in a
representative character; he is not personally liable thereon; but the mere
addition to his signature
of words describing him as an agent, or as filling a
representative character, does not exempt him from personal
liability.
(2)
In determining whether a signature on a bill is that of the principal or that of
the agent by whose hand it was written the construction
most favourable to the
validity of the instrument shall be adopted.
The Consideration for a Bill
Value and holder for value
27.-(1)
Valuable consideration for a bill may be constituted by-
(a) any consideration sufficient to support a simple contract;
(b) an. antecedent debt or liability such a debt, or liability is deemed valuable consideration whether the bill is payable on demand or at a future time.
(2)
Where value has at any time been given for a bill the holder is deemed to be a
holder for value as regards the acceptor and all
parties to the bill who became
parties prior to such
time.
(3)
Where the holder of a bill has a lien on it arising either from contract or by
implication of law, he is deemed to be a holder
for value to the extent of the
sum for which has a lien.
Accommodation bill for party
28.-(1)
An accommodation party to a bill is a person who has signed a bill as drawer,
acceptor, or endorser, without receiving value
therefor, and for the purpose of
lending his name to some other
person.
(2)
An accommodation party is liable on the bill to a holder for value, and it is
immaterial whether, when such holder took the bill,
he knew such party to be an
accommodation party or not.
Holder in due course
29.-(1)
A holder in due course is a holder who has taken a bill, complete and regular on
the face of it, under the following conditions,
namely-
(a) that he became the holder of it before it was overdue, and without notice that it had been previously dishonoured, if such was the fact;
(b) that he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negotiated it.
(2)
In particular the title of a person who negotiates a bill is defective within
the meaning of this Act when he obtained the bill,
or the acceptance thereof, by
fraud, duress, or force and fear, or other unlawful means, or for an illegal
consideration, or when
he negotiates it in breach of faith, or under such
circumstances as amount to a
fraud.
(3)
A holder (whether for value or not) who derives his title to a bill through a
holder in due course, and who is not himself a party
to any fraud or illegality
affecting it, has all the right of that holder in due course as regards the
acceptor and all parties to
the bill prior to that holder.
Presumption of value and good faith
30.-(1) Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value.
(2)
Every holder of a bill is prima facie deemed to be a holder in due course; but
if in an action on a bill it is admitted or proved
that the acceptance, issue,
or subsequent negotiation of the bill is affected with fraud, duress, or force
and fear, or illegality,
the burden of proof is shifted, unless and until the
holder proves that, subsequent to the alleged fraud or illegality, value has
in
good faith been given for the bill.
Negotiation of bill
Negotiation of bill
31.-(1)
A bill is negotiated when it is transferred from one person to another in such a
manner as to constitute the transferee the
holder of the
bill.
(2)
A bill payable to bearer is negotiated by
delivery.
(3)
A bill payable to order is negotiated by the endorsement of the holder completed
by
delivery'
(4)
Where the holder of a bill payable to his order transfers it for value without
endorsing it, the transfer gives the transferee
such title as the transferor had
in the bill, the transferee in addition acquires the right to have the
endorsement of the
transferor.
(5)
Where any person is under obligation to endorse a bill in a representative
capacity, he may endorse the bill in such terms as
to negative personal
liability.
Requisites of a valid endorsement
32.
An endorsement in order to operate as a negotiation must comply with the
following conditions, namely:
(a) it must be written on the bill itself and be signed by the endorser. The simple signature of the endorser on the bill, without additional words, is sufficient. An endorsement written on an allonge, or on a copy of a bill issued or negotiated in a country where "copies" are recognised, is deemed to be written on the bill itself;
(b) it must be an endorsement of the entire bill. A partial endorsement, that is to say, an endorsement which purports to transfer to the endorsee a part only of the amount payable, or which purports to transfer the bill to two or more endorsees severally, does not operate as a negotiation of the bill;
(c) Where a bill is payable to the order of two or more payees or endorsees who are not partners all must endorse, unless the one endorsing has authority to endorse for the others;
(d) where, in a bill payable to order, the payee or endorsee is wrongly designated, or his name is misspelt, he may endorse the bill as therein described, adding, it he thinks fit, his proper signature;
(e) where there are two or more endorsements on a bill, each endorsement is deemed to have been made in the order in which it appears on the bill, until the contrary is proved;
(f) an endorsement may be made in blank or special. It may also contain terms making it restrictive.
Conditional endorsement
33.
Where a bill purports to be endorsed conditionally the condition may be
disregarded by the payer, and payment to the endorsee
is valid whether the
condition has been fulfilled or not.
Endorsement in blank and special endorsement
34.-(1)
An endorsement in blank specifies no endorsee, and a bill so endorsed becomes
payable to
bearer.
(2)
A special endorsement specifies the person to whom, or to whose order, the bill
is to be
payable.
(3)
The provisions of this Act relating to a payee apply with the necessary
modifications to an endorsee under a special
endorsement.
(4)
When a bill has been endorsed in blank, any holder may convert the blank
endorsement into a special endorsement by writing above
the endorser's signature
a direction to pay the bill to or to the order of himself, or of some other
person.
Restrictive endorsement
35.-(1)
An endorsement is restrictive which prohibits the further negotiation of the
bill of which expresses that is a mere authority
to deal with the bill as
thereby directed and not a transfer of the ownership thereof, as, for example,
if a bill be endorsed "Pay
D only" or "Pay D for the account of X", or "pay D or
order" or "for
collection".
(2)
A restrictive endorsement give the endorsee the right to receive payment of the
bill and to sue any party thereto that his endorser
could have sued, but gives
him no power to transfer his rights as endorsee unless it expressly authorises
him to do
so.
(3)
Where a restrictive endorsement authorises further transfer, all subsequent
endorsees take the bill with the same rights and subject
to the same liabilities
as the first endorsee under the restrictive endorsement.
Negotiation of overdue or dishonoured bill
36.-(1)
Where a bill is negotiable in its origin it continues to be negotiable until it
has been:
(a) restrictively endorsed; or
(b) discharged by payment or otherwise.
(2)
Where an overdue bill is negotiated, it can only be negotiated subject to any
defect of title affecting it at its maturity, and
thenceforward no person who
takes it can acquire or give a better title than that which the person from whom
he took it
had.
(3)
A bill payable on demand is deemed to be overdue within the meaning and for the
purposes of this section, when it appears on the
face of it to have been in
circulation for an unreasonable length of time. What is an unreasonable length
of time for this purpose
is a question of
fact.
(4)
Except where an endorsement bears date after the maturity of the bill, every
negotiation is prima facie deemed to have been effected
before the bill was
overdue.
(5)
Where a bill which is not overdue has been dishonoured any person who takes it
with notice of the dishonour takes it subject to
any defect of title attaching
thereto at the time of dishonour, but nothing in this subsection shall affect
the rights of a holder
in due course.
Negotiation of bill to party already liable thereon
37.
Where a bill is negotiated back to the drawer, or to a prior endorser or to the
acceptor, such party may, subject to the provisions
of this Act, reissue and
further negotiate the bill, but he is not entitled to enforce payment of the
bill against any intervening
party to whom he was previously
liable.
Rights of the holder
38.
The rights and powers of the holder of a bill are as follows:
(a) he may sue on the bill in his own name;
(b) where he is a holder in due course, he holds the bill free from any defect of title of prior parties, as well as from mere personal defences available to prior parties among themselves, and may enforce payment against all parties liable on the bill;
(c) where his title is defective:
(i)if he negotiates the bill to a holder in due course, that holder obtains a good and complete title to the bill; and
(ii) if he obtains payment of the bill the person who pays him in due course gets a valid discharge for the bill.
General Duties of the Holder
Where presentment for acceptance is necessary
39.-(1)
Where a bill is payable after sight, presentment for acceptance is necessary in
order to fix the maturity of the
instrument.
(2)
Where a bill expressly stipulates that it shall be presented for acceptance, or
where a bill is drawn payable elsewhere than at
the residence or place of
business if the drawee, it must be presented for acceptance before it can be
presented for
payment.
(3)
In no other case is presentment for acceptance necessary in order to render
liable any party to the
bill.
(4)
Where the holder of a bill, drawn payable elsewhere than at the place of
business or residence of the drawee, has not time, with
the exercise of
reasonable diligence, to present the bill for acceptance before presenting it
for payment on the day that it falls
due, the delay caused by presenting the
bill for acceptance before presenting it for payment is excused, and does not
discharge the
drawer and endorsers.
Time for presenting bill payable after sight
40.-(1)
Subject to the provisions of this Act, when a bill payable after sight is
negotiated, the holder must either present it for
acceptance or negotiate it
within a reasonable
time.
(2)
If he does not do so, the drawer and all endorsers prior to that holder are
discharged.
(3)
In determining what is a reasonable time within the meaning of this section,
regard shall be had to the nature of the bill, the
usage of trade with respect
to similar bills, and the facts of the particular case.
Rules as to presentment for acceptance and excuses for non-presentment
41.-(1)
A bill is duly presented for acceptance which is presented in accordance with
the following rules-
(a) the presentment must be made by or on behalf of the holder to the drawee or to some person authorised to accept or refuse acceptance on his behalf at a reasonable hour on a business-day and before the bill is overdue;
(b) where a bill is addressed to two or more drawees, who are not partners, presentment must be made to them all, unless one has authority to accept for all then presentment may be made to him only;
(c) where the drawee is dead, presentment may be made to his personal representative;
(d) where the drawee is bankrupt, presentment may be made to him or to his trustee;
(e) where authorised by agreement or usage a presentment through the post office is sufficient.
(2)
Presentment in accordance with these rules is excused and a bill may be treated
as dishonoured by non-acceptance-
(a) where the drawee is dead or bankruptcy or is a fictitious person or person not having capacity to contract by bill;
(b) where, after the exercise reasonable diligence such presentment cannot be effected;
(c) where, although the presentment has been irregular, acceptance has been refused on some other ground.
(3)
The fact that the holder has reason to believe that the bill, on presentment,
will be dishonoured does not excuse presentment.
Non-acceptance
42.
When a bill is duly presented for acceptance and is not accepted within the
customary time, the person presenting it must treat
it as dishonoured by non
acceptance. If he does not, the holder shall lose his right of recourse against
the drawer and endorsers.
Dishonour by non-acceptance and its consequences
43.-(1)
A bill is dishonoured by non-acceptance:
(a) when it is duly presented for acceptance, and such an acceptance as is prescribed by this Act is refused or cannot be obtained;
(b) when presentment for acceptance is excused and the bill is not accepted.
(2)
Subject to the provisions of this Act when a bill is dishonoured by
non-acceptance, an immediate right of recourse against the
drawer and endorsers
accrues to the holder, and no presentment for payment is
necessary.
Duties as to qualified acceptances
44.-(1)
The holder of a bill may refuse to take a qualified acceptance, and if he does
not obtain an unqualified acceptance may treat
the bill as dishonoured by
non-acceptance.
(2)
Where a qualified acceptance is taken, and the drawer or an endorser has not
expressly or impliedly authorised the holder to take
a qualified acceptance, or
does not subsequently assent thereto, such drawer or endorser is discharged from
his liability on the
bill. The provisions of this subsection do not apply to a
partial acceptance, whereof due notice has been given. Where a foreign
bill has
been accepted as to part, it must be protested as to the
balance.
(3)
When the drawer or endorser of a bill receives notice of a qualified acceptance,
and does not within a reasonable time express
his dissent to the holder, he
shall be deemed to have assented thereto.
Rules as to presentment for payment
45.-(1)
Subject to the provisions of this Act, a bill must be duly presented for
payment. If it be not so presented the drawer and
endorsers shall be
discharged.
(2)
A bill is duly presented for payment which is presented in accordance with the
following rules:
(a) where the bill is not payable on demand, presentment must be made on the day it falls due;
(b) where the bill is payable on demand, then, subject to the provisions of this Act, presentment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its endorsement, in order to render the endorser liable. In determining what is a reasonable time, regard shall be had to the nature of the bill, the usage of trade with regard to similar bills, and of the facts of the particular case;
(c) presentment must be made by the holder or by some person authorised to receive payment on his behalf at a reasonable hour on a business day, at the proper place as hereinafter defined, either to the person designated by the bill as payer, or to some person authorised to pay or refuse payment on his behalf, if with the exercise of reasonable diligence such person can there be found;
(d) a bill is presented at the proper place-
(i)where a place of payment is specified in the bill and the bill is there presented;
(ii) where no place of payment is specified, but the address of the drawee or acceptor is given in the bill and the bill is there presented;
(iii)where no place of payment is specified and no address given, and the bill is presented at the drawee's or acceptor's place of business if known, and if not, at his ordinary residence if known;
(iv) in any other case if: presented to the drawee or acceptor wherever he, can. be found, or if presented at his last known place of business or residence;
(e) where a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorised to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required;
(f) where a bill is drawn upon, or accepted by two or more persons who are not partners, and no place of payment is specified, presentment must be made to them all;
(g) where the drawee or acceptor of a bill is dead, and no place of payment is specified, presentment must be made to a personal representative, if such there be, and, with the exercise of reasonable diligence, he can be found;.
(h) where authorised by agreement or usage a presentment through the post office is sufficient.
Excuses for delay or non-presentment for payment
46.-(1)
Delay in making presentment for payment is excused when the delay is caused by
circumstances beyond the control of the holder,
and not imputable to his
default, misconduct, or negligence. When the cause of delay ceases to operate
presentment must be made,
with reasonable
diligence.
(2)
Presentment for payment is dispensed with-
(a) where, after the exercise of reasonable, diligence, presentment, as required by this Act, cannot be effected. The fact that the holder has reason to believe that the bill will, on presentment, be dishonoured, does not dispense with the necessity for presentment;
(b) where the drawee is a fictitious person;
(c) as regards the drawer, where the drawee or acceptor is not bound, as between himself and the drawer to accept or pay the bill, and the drawer, has no reason to believe that the bill would be paid if presented;
(d) as regards, an endorser, where the bill was accepted or made for the accommodation of that endorser, and he has no reason to expect that the bill would be paid if presented;
(e) by waiver of presentment, express or implied.
Dishonour by non-payment
47.-(1)
A bill is dishonoured by non-payment-
(a) when it is duly presented for payment and payment is refused or cannot be obtained; or
(b) when presentment is excused and the bill is overdue and unpaid.
(2)
Subject to the provisions of this Act, when a bill is dishonoured by
non-payment, an immediate right of recourse against the drawer
and endorsers
accrues to the holder.
Notice of dishonour and effect of non-notice
48.
Subject to the provisions of this Act, when a bill has been dishonoured by
non-acceptance or by non-payment, notice of dishonour
must be given to the
drawer and each endorser, and any drawer or endorser to whom such notice is not
given is
discharged:
Provided
that; -
(a) where a bill is dishonoured by non-acceptance, and notice of dishonour is not given, the rights of a holder in due course subsequent to the omission shall not be prejudiced by the omission;
(b) where a bill is dishonoured by non-acceptance, and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted.
Rules as to notice of dishonour
49.
Notice of dishonour in order to be valid and effectual must be given in
accordance with the following rules:-
(a) the notice must be given by or on behalf of the holder, or by or on behalf of an endorser who, at the time of giving it, is himself liable on the bill;
(b) notice of dishonour may be given by an agent either in his own name, or in the name of any party entitled to give notice whether that party be his principal or not;
(c) where the notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior endorsers who have a right of recourse against the party to whom it is given;
(d) where notice is given by or on behalf of an endorser entitled to give notice as herein before provided, it enures for the benefit of the holder and all endorsers subsequent to the party to whom notice is given;
(e) the notice may be given in writing or by personal communication, and may be given in any terms which sufficiently identity the bill, and intimate that the bill has been dishonoured by non-acceptance or non-payment;
(f) the return of a dishonoured bill to the drawer or an endorser is, in point of form, deemed a sufficient notice of dishonour;
(g) a written notice need not be signed, and an insufficient written notice may be supplemented and validated by verbal communication. A misdescription of the bill shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby;
(h) where notice of dishonour is required to be given to any person, it may be given either to the party himself, or to his agent in that behalf;
(i) where the drawer or endorser is dead, and the party giving notice knows it, the notice must be given to a personal representative if such there be, and with the exercise of reasonable diligence he can be found;
(j) where the drawer or endorser is bankrupt, notice may be given either to the party himself or to the trustee;
(k) where there are two or more drawers or endorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the others;
(l) the notice may be given as soon as the bill is dishonoured and must be given within a reasonable time thereafter. In the absence of special circumstances notice is not deemed to have been given within a reasonable time unless-
(i) where the person giving and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dishonour of the bill;
(ii) where the person giving and the person to receive notice reside at different places, the notice is sent off on the day after the dishonour of the bill, if there be a post at a convenient hour on that day, and' if there be no post on that day then by the next post thereafter;
(m) where a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill, or he may give notice to his principal. If he gives notice to his principal, he must do so within the same. time as if he were the holder, and the principal receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder;
(n) where a party to a bill receives due notice of dishonour he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after the dishonour;
(o) where a notice of dishonour is duly addressed and posted, the sender is deemed to have given due notice of dishonour, notwithstanding any miscarriage by the post office.
(Section amended by 6 of 1903, s. 1.)
Excuses for non-notice and delay
50.-(1)
Delay in giving notice of dishonour is excused where the delay is caused by
circumstances beyond the control of the party
giving notice, and not imputable
to his default, misconduct, negligence. When the cause of delay ceases to
operate the notice must
be given with reasonable
diligence.
(2)
Notice of dishonour is dispensed with -
(a) when, after the exercise of reasonable diligence, notice as required by this Act cannot be given to or does not reach the drawer or endorser sought to be charged;
(b) by waiver express or implied. Notice of dishonour may he waived before the time of giving notice has arrived, or after the omission to give due notice;
(c) as regards the drawer in the following cases, namely:-
(i) where drawer and drawee are the same person;
(ii) where the drawee is a fictitious person or a person not having capacity to contract;
(iii) where the drawer is the person to whom the bill is presented for payment;
(iv) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill;
(v) where the drawer has countermanded payment;
(d) as regards the endorser in the following cases, namely:-
(i) where the drawee is a fictitious person or a person not having capacity to contract and the endorser was aware of the fact at the time he endorsed the bill;
(ii) where the endorser is the person to whom the bill is presented for payment;
(iii) where the bill was accepted or made for his accommodation.
Noting or protest of bill
51.-(1)
Where an inland bill has been dishonoured it may, if the holder thinks fit, be
noted for non-acceptance or non-payment, as
the case may be; but it shall not be
necessary to note or protest any such bill in order to preserve the recourse
against the drawer
or
endorser.
(2)
Where a foreign bill, appearing on the face of it to be such, has been
dishonoured by non-acceptance it must be duly protested
for non-acceptance, and
where such a bill, which has not been previously dishonoured by non-acceptance,
is dishonoured by non-payment
it must be duly protested for non-payment. If it
be not so protested the drawer and endorser are discharged. Where a bill does
not
appear on the face of it to be a foreign bill, protest thereof in case of
dishonour is
unnecessary.
(3)
A bill which has been protested for non-acceptance may be subsequently protested
for
non-payment.
(4)
Subject to the provisions of this Act, when a bill is noted or protested, it may
be noted on the day of its dishonour and must
be noted not later than the next
succeeding business day. When a bill has been duly noted, the protest may be
subsequently extended
as of the date of the
noting.
(Amended
by 2 of 1945, s.
24)
(5)
Where the acceptor of a bill becomes bankrupt or insolvent or suspends payment
before it matures, the holder may cause the bill
to be protested for better
security against the drawer and
endorsers.
(6)
A bill must be protested at the place where it is
dishonoured:
Provided
that:
(a) when. a bill is presented through the post office, and returned by post, dishonoured, it may be protested at the place to which it is returned and on the day of its return if received during business hours, and if not received during business hours, then not later than the next business day;
(b) when a bill drawn payable at the place of business or residence of some person other than the drawee has been dishonoured by non-acceptance, it must be protested for non-payment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on, the drawee is necessary.
(7)
A protest must contain a copy of the bill, and must be signed by the notary
making it, and must specify:
(a) the person at whose request the bill is protested;
(b) the place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, if any, or the fact that the drawee or acceptor could not be found.
(8)
Where a bill is lost or destroyed, or is wrongly detained from the person
entitled to hold it, protest may be made on a copy or
written particulars
thereof.
(9)
Protest is dispensed with by any circumstance which would dispense with notice
of dishonour. Delay in noting or protesting is
excused when the delay is caused
by circumstances beyond the control of the holder, and not imputable to his
default, misconduct,
or negligence. When the cause of delay ceases to operate
the bill must be noted or protested with reasonable diligence.
Duties of holder as regards drawee or acceptor
52.-(1) When a bill is accepted generally presentment for payment is not necessary in order to render the acceptor liable.
(2)
When by the terms of a qualified acceptance presentment for payment is required,
the acceptor, in the absence of an express stipulation
to that effect, is not
discharged by the omission to present the bill for payment on the day that it
matures.
(3)
In order to render the acceptor of a bill liable it is not necessary to protest
it, or that; notice of dishonour should be given
to
him.
(4)
Where the holder of a bill presents it for payment, he shall exhibit the bill to
the person from whom he demands payment, and
when a bill is paid the holder
shall forthwith deliver it up to the party paying it.
Liabilities of Parties
Funds in hands of drawee
53.
A bill of itself does not operate as an assignment of funds in the hands of the
drawee available for the payment thereof, and
the drawee of a bill who does not
accept as required by this Act is not liable on the instrument.
Liability of acceptor
54.
The acceptor of a bill by accepting it:-
(a) engages that he will pay it according to the tenor of his acceptance;
(b) is precluded from denying to a holder in due course-
(i) the existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill;
(ii) in the case of a bill payable to drawer's order, the then capacity of the drawer to, endorse but not the genuineness or validity of is endorsement;
(iii) in the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to endorse but not the genuineness or validity of his endorsement.
Liability of drawer or endorser
55.-(1)
The drawer of a bill by drawing it-
(a) engages that on due presentment it shall be accepted and paid it according to its tenor of his acceptance, and that if it be dishonoured he will compensated the holder or any endorser who is compelled to pay it, provided that the requisite proceeding on dishonour be duly taken;
(b) is precluded from denying to a holder in due course the existence of the payee and his then capacity to endorse.
(2)
The endorser of a bill by endorsing it-
(a) engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured he will compensate the holder or a subsequent endorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken;
(b) is precluded from denying to a holder in due course the genuineness and regularity in all respects of the drawer's signature and all previous endorsements;
(c) is precluded from denying to his immediate or a subsequent endorsee that the bill was at the time of his endorsement a valid and subsisting bill and that he had then a good title thereto.
Stranger signing bill liable as endorser
56.
Where a person signs a bill otherwise than as drawer or acceptor, he thereby
incurs the liabilities of an endorser to a holder
in due course.
Measure of damages against parties to dishonoured bill
57.
Where a bill is dishonoured, the measure of damages, which shall be deemed to be
liquidated damages, shall be as follows:
(a) the holder may recover from any party liable on the bill, and the drawer who has been compelled to pay the bill may recover from the acceptor; and an endorser who has been compelled to pay the bill may recover from the acceptor or from the drawer, or from a prior endorser:
(i) the amount of the bill;
(ii) the interest thereon from the time of presentment for payment if the bill is payable on demand, and from the maturity of the bill in any other case;
(iii) the expenses of noting, or, when protest is necessary, and the protest has been extended, the expenses of protest;
(b) in the case of a bill which has been dishonoured abroad, in lieu of the above damages, the holder may recover from the drawer or an endorser, and the drawer or an endorser who has been compelled to pay the bill may recover from any party liable to him, the amount of the re-exchange with interest thereon until the time of payment;
(c) where by this Act interest may be recovered as damages, such interest may, if justice require it, be withheld wholly or in part, and where a bill is expressed to be payable with interest at a given rate, interest as damages may or may not be given at the same rate as interest proper.
Transferor by delivery and transferee
58.-(1)
Where the holder of a bill payable to bearer negotiates it by delivery without
endorsing it, he is called a "transferor by
delivery".
(2)
A transferor by delivery is not liable on the
instruments.
(3)
A transferor by delivery who negotiates a bill thereby warrants to his immediate
transferee being a holder for value that the
bill is what it purports to be,
that he has a right to transfer it, and that at the time of transfer he is not
aware of any fact
which renders it valueless.
Discharge of a Bill
Payment in due course
59.-(1)
A bill is discharged by payment in due course by or on behalf of the drawee or
acceptor. "Payment in due course" means payment
made at or after the maturity of
the bill to the holder thereof in good faith and without notice that his title
to the bill is defective.
(2) Subject to the provisions hereinafter contained, when a bill is paid by the drawer or an endorser it is not discharged: but
(a) where a bill payable to, or to the order of, a third party is paid by the drawer, the drawers may enforce payment thereof against the acceptor, but may not reissue; the bill;
(b) where a bill is paid by an endorser, or where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may it he thinks, fit,, strike out his own and subsequent endorsements, and again negotiate the: bill.
(3)
Where an accommodation bill is paid in due course by the party accommodated the
bill is discharged.
Banker paying demand draft whereon endorsement is forged
60.
When a bill payable to order on demand is drawn on a banker, and the banker on
whom it is drawn. pays the bill in good faith and
in the ordinary course of
business, it is not incumbent on the banker, to show that the endorsement of the
payee or, any subsequent
endorsement, was made by or under the authority of the
person whose endorsement it purports to be, and the banker is deemed to have
paid the bill in due course, although such, endorsement has been forged or made
without authority
Acceptor the at maturity
61.
When the acceptor of at bill is or becomes the holder of it at or after its
maturity, in his own right, the bill is discharged.
Express waiver
62.-(1)
When the holder of a bill at or after its maturity absolutely and
unconditionally renounces his rights against the acceptor
the bill is
discharged. The renunciation must be in writing unless the bill is delivered up
to the
acceptor.
(2)
The liabilities of any party to a bill may, in like manner, be renounced by the
holder before, at or after its maturity, but nothing
in this section, shall
affect the rights of a holder in due course without notice of the
renunciation.
Cancellation
63.-(1)
Where a bill is intentionally cancelled by the holder or his agent, and the
cancellation is apparent thereon the bill is
discharged.
(2)
In like manner any party liable on a bill may be discharged by the intentional
cancellation of his signature by the holder or
his agent. In such case any
endorser who would have had a right of recourse, against the party whose
signature is cancelled is also
discharged.
(3)
A cancellation made unintentionally, or under a mistake, or without the
authority of the holder is inoperative; but where a bill
or any signature
thereon appears to have been cancelled the burden of proof lies on the party who
alleges that the cancellation was
made unintentionally, or under a mistake, or
without authority.
Alteration of bill
64.-(1)
Where a bill or acceptance is materially altered without the assent of all
parties liable on the bill, the bill is avoided
except as against a party who
has himself made, authorised, or assented to the alteration, and subsequent
endorsers:
Provided
that where a bill has been materially altered, but the alteration is not
apparent, and. the bill is in the hands of a holder
in due course, such holder
may avail himself of the bill as if it had not been altered, and may enforce
payment of it according to
its original
tenor.
(2)
In particular the following alterations are material, namely any alteration of
the date, the sum payable, the time of payment,
the place of payment, and, where
a bill has been accepted generally, the addition of a place of payment without
the acceptor's assent.
Acceptance and Payment for Honour
Acceptance for honour supra protest
65.-(1)
Where a bill of exchange has been protested for dishonour by non-acceptance, or
protested for better security, and is not
overdue, any person, not being, a
party already liable thereon, may, with the consent of the holder, intervene and
accept the bill
supra protest, for the honour of any party liable thereon, or
for the honour of the person for whose account the bill is
drawn.
(2)
A bill may be accepted for honour for part only of the sum for which it is
drawn.
(3)
An acceptance for honour supra protest in order to be valid must
(a) be written on the bill and indicate that it is an acceptance for honour;
(b) be signed by the acceptor for honour.
(4)
Where an acceptance for honour does not expressly state for whose honour it is
made, it is deemed to be an acceptance for the
honour of the
drawer.
(5)
Where a bill payable after sight is accepted for honour, its maturity is
calculated from the date of the noting for non-acceptance,
and not from the date
of the acceptance for honour.
Liability of acceptor for honour
66.-(1)
The acceptor for honour of a bill by accepting it engages that he will, on due
presentment, pay the bill according to the
tenor of his acceptance, if it is not
paid by the drawee, provided it has been duly presented for payment, and
protested for non-payment,
and that the acceptor receives notice of these
facts.
(2)
The acceptor for honour is liable to the holder and to all parties to the bill
subsequent to the party for whose honour he has
accepted.
Presentment to acceptor for honour
67.-(1)
Where a dishonoured bill has been accepted for honour supra protest, or contains
a reference in case of need, it must be protested
for non-payment before it is
presented for payment to the acceptor for honour, or referee in case of
need.
(2)
Where the address of the acceptor for honour is in the same place where the bill
is protested for non-payment, the bill must be
presented to him not later than
the day following its maturity; and where the address of the acceptor for honour
is or in some place
other than the place where it was protested for non-payment,
the bill must be forwarded not later than the day following its maturity
for
presentment to
him.
(3)
Delay in presentment or non-presentment is excused by any circumstance which
would excuse delay in presentment for payment or
non-presentment for
payment.
(4)
When a bill of exchange is dishonoured by the acceptor for honour it must be
protested for non-payment by him.
Payment for honour supra protest
68.-(1)
Where a bill has been protested for non-payment, any person may intervene and
pay it supra protest for the honour of any party
liable thereon, or for the
honour of the person for whose account the bill is
drawn.
(2)
Where two or more persons offer to pay a bill for the honour of different
parties, the person whose payment will discharge most
parties to the bill shall
have the
preference.
(3)
Payment for honour supra protest, in order to operate as such and not as a mere
voluntary payment, must be attested by a notarial
act of honour which may be
appended to the protest or form an extension of
it.
(4)
The notarial act of honour must be founded on a declaration made by the payer
for honour, or his agent in. that behalf declaring
his intention to pay the bill
for honour, and for whose honour he
pays.
(5)
Where a bill has been paid for honour our, all parties subsequent to the party
for whose honour it is paid am discharged but the
payer for honour is subrogated
for, and succeed to both the rights and duties of the holder as regards the
party for whose honour
he pays and all parties liable to that
party.
(6)
The payers for honour on paying to the holder the amount of the bill and the
notarial expenses incidental to its dishonour is
entitled to receive both the
bill itself and the protest. If the holder does not on demand deliver them up he
shall be liable to
the payer for honour in
damages.
(7)
Where the holder of a bill refuses to receive payment supra protest he shall
lose his right of recourse against any party who
would have been discharged by
such payment.
Lost Instruments
Holder's right to duplicate of loss bill
69.
Where a bill has been lost before it is overdue, the person who was the holder
of it may apply to the drawer to give him another
bill of the same tenor, giving
security to the drawer if required to indemnify him against all persons
whatsoever in case the bill
alleged to have been lost shall be found again. If
the drawer on request aforesaid refuses to give such duplicate bill he may be
compelled to do so.
Action on lost bill
70.
In any action or proceeding upon a bill, the court may order that the loss of
the instrument shall not be set up provided an indemnity
be given to the
satisfaction of the court against the claims of any other person upon the
instrument in question.
Bill in a Set
Rules as to set
71.-(1)
Where a bill is drawn in a set, each part of the set being numbered, and
containing a reference to the other parts, the whole
of the parts constitute one
bill.
(2)
Where the holder of a set endorses two or more parts to different persons, he is
liable on every such part, and every endorser
subsequent to him is liable on the
part he has himself endorsed as if the said parts were separate
bills.
(3)
Where two or more parts of a set are negotiated to different holders in due
course, the holder whose title first accrues is as
between such holders deemed
the true owner of the bill; but nothing in this subsection shall affect the
rights of a person who in
due course accepts or pays the part first presented to
him.
(4)
The acceptance may be written on any part, and it must be written on one part
only. If the drawee accepts more than one part,
and such accepted parts get into
the hands of different holders in due course, he is liable on every such part as
if it were a separate
bill.
(5)
When the acceptor of a bill drawn in a set pays it without requiring the part
bearing his acceptance to be delivered up to him,
and that part at maturity is
outstanding in the hands of a holder in due course, he is liable to the holder
thereof.
(6)
Subject to the preceding rules, where any one part of a bill drawn in a set is
discharged by payment or otherwise, the whole bill
is discharged.
Conflict of Laws
Rules where laws conflict
72.
Where a bill drawn in one country is negotiated, accepted, or payable in
another, the rights, duties, and liabilities of the parties
thereto are
determined as follows:
(a) the validity of a bill as regards requisites in form is determined by the law of the place of issue, and the validity as regards requisites in form of the supervening contracts, such as acceptance, or endorsement, or acceptance supra protest, is determined by the law of the place where such contract was made:
Provided that-
(i)where a bill is issued out of Fiji it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue;
(ii)where a bill, issued out of Fiji, conforms, as regards requisites in form, to the law of Fiji, it may, for the purposes of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, or become parties to it in Fiji;
(b) subject to the provisions of this Act, the interpretation of the drawing, endorsement, acceptance, or acceptance supra protest of a bill, is determined by the law of the place where such contract is made:
Provided that where an inland bill is endorsed in a foreign country the endorsement shall as regards the payer be interpreted according to the law of Fiji;
(c) the duties of the holder with respect to presentment for acceptance or payment and the necessity for or sufficiency of a protest or notice of dishonour, or otherwise, are determined by the law of the place where the act is done or the bill is dishonoured;
(d) where a bill is drawn out of but payable in Fiji and the sum payable is not expressed in the currency of Fiji, the amount shall, in the absence of some express stipulation, be calculated according to the rate of exchange for sight drafts at the place of payment on the day the bill is payable;
(e) where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable.
PART III - CHEQUES ON A BANKER'
Cheque defined
73.
A cheque is a bill of exchange drawn on a banker payable on demand. Except as
otherwise provided in this Part, the provisions
of this Act applicable to a bill
of exchange payable on demand apply to a cheque.
Presentment of cheque for payment
74.
Subject to the provisions of:
(a) where a cheque is not resented for payment within a reasonable time of its issue, and the drawer or the person on whose account it is drawn had the right at the time of such presentment as between him and the banker to have the cheque paid and suffers actual damage through the delay, he is discharged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid;
(b) in determining what is a reasonable time regard shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case;
(c) the holder of such cheque as to which such drawer or person is discharged shall be a creditor in lieu of such drawer or person, of such banker to the extent of such discharge, and entitled to recover the amount from him.
Revocation of banker's authority
75.
The duty and authority of a banker to pay a cheque drawn on him by his customer
are determined by-
(a) countermand of payment;
(b) notice of the customer's death.
Crossed Cheques
General and special crossing define.
76.-(1)
Where e cheque bears across its face an addition of-
(a) the words "and Company" or any abbreviation thereof between two parallel transverse lines; either with or without the words "not negotiable"; or
(b) two parallel transverse lines simply, either with or without the words "not negotiable", that addition constitutes a crossing, and the cheque is crossed generally.
(2)
Where a cheque bears across its face an addition of the name of a banker either
with or without the words "not negotiable", that
addition constitutes a
crossing, and the cheque is crossed specially and to that banker.
Crossing by drawer or after issue
77.-(1)
A cheque may be crossed generally or specially by the
drawer.
(2)
Where a cheque is uncrossed, the holder may cross it generally or
specially.
(3)
Where a cheque is crossed generally the holder may cross it
specially.
(4)
Where a cheque is crossed generally or specially, the holder may add the words
"not
negotiable".
(5)
Where a cheque is crossed specially, the banker to whom it is crossed may again
cross it specially to another banker for
collection.
(6)
Where an uncrossed cheque, or a cheque crossed generally, is sent to a banker
for collection, he may cross it specially to himself.
Crossing a material part of cheque
78.
A crossing authorised by this Act is a material part of the cheque; it shall not
be lawful for any person to obliterate or, except
as authorised by this Act, to
add to or alter the crossing.
Duties of banker as to crossed cheques
79.-(1)
Where a cheque is crossed specially to more than one banker except when crossed
to an agent for collection being a banker,
the banker on whom it is drawn shall
refuse payment
thereof.
(2)
Where the banker on whom a cheque is drawn which is so crossed nevertheless pays
the same, or pays a cheque crossed generally
otherwise than to a banker, or if
crossed specially otherwise than to the banker to whom it is crossed, or his
agent for collection
being a banker, he is liable to the true owner of the
cheque for any loss he may sustain owing to the cheque having been so
paid:
Provided
that where a cheque is presented for payment which does not at the time of
presentment appear to be crossed, or to have had
a crossing which has been
obliterated, or to have been added to or altered otherwise than as authorised by
this Act, the banker paying
the cheque in good faith and without negligence
shall not be responsible or incur any liability, nor shall the payment be
questioned
by reason of the cheque having been crossed; or of the crossing
having been obliterated or having been added to or altered otherwise
than as
authorised by this Act, and of payment having been made otherwise than to a
banker or to the banker to whom the cheque is
or was crossed, or to his agent
for collection being a banker, as the case may be.
Protection to banker and drawer where cheque is crossed
80.
Where the banker, on whom a crossed cheque is drawn, in good faith and without
negligence pays it, if crossed generally, to a
banker, and if crossed specially,
to the banker to whom it is crossed, or his agent for collection being a banker,
the banker paying
the cheque, and, if the cheque has come into the hands of the
payee, the drawer, shall respectively be entitled to the same rights
and be
placed in the same position as if payment of the cheque had been made to the
true owner thereof.
Effect of crossing on holder
81.
Where a person takes a crossed cheque which bears on it the words "not
negotiable", he shall not have and shall not be capable
of giving of better
title to the cheque than that which the person from whom he took it
had.
Sections 76 to 81 also to apply to other instruments
82.
Sections 76 to 81 inclusive shall, so far as is applicable, have effect in
relation to instruments (other than cheques) to which
section 86 applies as they
have effect in relation to
cheques.
(Substituted
by 7 of 1970, s. 2.)
Endorsement of Cheques
Protection of bankers paying unendorsed or irregularly endorsed cheques
83.-(1)
Where a banker, in good faith and in the ordinary c course of business, pays a
cheque drawn on him which is not endorsed or
it irregularly endorsed, he shall
not in doing so incur any liability by reason only of the absence of, or
irregularity in, endorsement
and he shall be deemed to have paid it in due
course.
(2). Where a banker in good faith and in the ordinary course of business, pays any such instrument as the following:
(a) a document issued by a customer of his which, though not a bill of exchange, is intended to enable a person to obtain payment from him of the sum mentioned in the document; or
(b) a draft payable on demand drawn by him upon himself whether payable at the head office or some other, office of his bank,
he shall not in doing so incur any liability by reason only of the absence of, or irregularity in, endorsement and the payment shall discharge the instrument.
(Inserted
by of, 1970, s; 2.)
Rights of bankers collecting cheques unendorsed by holders
84.
A banker who gives value for, or has a lien on, a cheque payable to order which
the holder delivers to him for collection without
endorsing it shall have such
rights, if any, as he would have had if upon delivery the holder had endorsed it
in
blank.
(Inserted
by 7 of 1970,
s.2)
85.
An unendorsed cheque which appears to have been paid by a banker on whom it is
drawn shall in the absence of proof to the contrary
be sufficient evidence of
the receipt by the payee of the sum payable; by the
cheque.
(Inserted
by 7 of 1970, s.2)
Protection of bankers collecting payment of cheques
86.-(1)
Where a banker in good, faith and without negligence:
(a) receives payment for a customer of an instrument to which this section applies; or
(b) having credited a customer's account with the amount of any such instrument, receives payment thereof for himself, and the customer has no title or a defective title to, the instrument the banker shall not incur any liability to the true owner of the instrument by reason only of having received payment thereof.
(2)
This section applies to the following instruments:
(a) cheques;
(b) any document issued by a customer of a banker which, though not a bill of exchange, is intended to enable a person to obtain payment from that banker of the sum mentioned in the document;
(c) any document, not being a bill of exchange, issued by a public officer which is intended to enable a person to obtain payment out of the Consolidated Fund of the sum mentioned in the document;
(d) any draft payable on demand drawn by a banker upon himself whether payable at the head office or some other office of the bank.
(3)
A banker shall not be treated for the purposes of this section as having been
negligent by reason only of his failure to concern
himself with the absence of,
or irregularity in, endorsement of an
instrument.
(Section
inserted by 7 of 1970, s. 2.)
Effect of sections 83 to 36 inclusive
87.
Nothing in the provisions of sections 83 to 86, inclusive, shall be deemed to
make negotiable any instrument which, apart from
those provisions, is not
negotiable.
(Inserted
by 7 of 1970, s. 2.)
PART IV - PROMISSORY NOTES
Promissory note defined
88.-(1)
A promissory note is an unconditional promise in writing made by one person to
another signed by the maker, engaging to pay,
on demand or at a fixed or
determinable future time, a sum certain in money, to, or to the order of, a
specified person or to
bearer.
(2)
An instrument in the form of a note payable to maker's order is not a note
within the meaning of this section unless and until
it is endorsed by the
maker.
(3)
A note is not invalid by reason only that it contains also a pledge of
collateral security with authority to sell or dispose
thereof.
(4)
A note which is, or on the face of it purports to be, both made and payable in
Fiji, or within the Commonwealth of Australia,
New Zealand or Papua, is an
inland note. Any other note is a foreign note.
Delivery necessary
89.
A promissory note is inchoate and incomplete until delivery thereof to the payee
or bearer.
Joint and several notes
90.-(1)
A promissory note may be made by two or more makers, and they may be liable
thereon jointly, or jointly and severally according
to its
tenor.
(2)
Where a note runs "I promise to pay" and is signed by two or more persons it is
deemed to he their joint and several note.
Note payable on demand
91.-(1)
Where a note payable on demand has been endorsed, it must be presented for
payment within a reasonable time of the endorsement.
If it be not so presented
the endorser is
discharged.
(2)
In determining what is a reasonable time, regard shall be had to the nature of
the instrument, the usage of trade, and the facts
of the particular
case.
(3)
Where a note payable on demand is negotiated, it is not deemed to be overdue,
for the purpose of affecting the holder with defects
of title of which he had no
notice, by reason that it appears that a reasonable time for presenting it for
payment has elapsed since
its issue.
Presentment of note for payment
92.-(1)
Where a promissory note is in the body of it made payable at a particular place,
it must be presented for payment at that
place in order to render the maker
liable. In any other case, presentment for payment is not necessary in order to
render the maker
liable.
(2)
Presentment for payment is necessary in order to render the endorser of a note
liable.
(3)
Where a note is in the body of it made payable at a particular place,
presentment at that place is necessary in order to render
an endorser liable;
but when a place of payment is indicated by way of a memorandum only presentment
at that place is sufficient
to render the endorser liable but a presentment to
the maker elsewhere, if sufficient in other respects shall also
suffice.
Liability of maker
93.
The maker of a promissory note by making it:
(a) engages that he will pay it according to its tenor;
(b) is precluded from denying to a holder in due course the existence of the payee and his then capacity to endorse.
Application of Part II to Notes
94.-(1)
Subject to the provisions of this Part, and except as by this section provided,
the provisions of this Act relating to bills
of exchange apply, with the
necessary modifications, to promissory
notes.
(2)
In applying those provisions the maker of a note shall be deemed to correspond
with the acceptor of a bill, and the first endorser
of a note shall be deemed to
correspond with the drawer of an accepted bill payable to drawer's
order.
(3)
The following provisions as to bills do not apply to notes, namely, provisions
relating to:-
(a) presentment for acceptance;
(b) acceptance;
(c) acceptance supra protest;
(d) bills in a set.
(4)
Where a foreign note is dishonoured, protest thereof is
unnecessary.
Thumb print to be affixed and form of alteration in certain cases
95.-(1)
Any promissory note made by a person unable to sign his name in the Roman script
shall bear the thumb print of the maker affixed
thereto in indelible
ink.
(2)
When a promissory note is taken as security for any loan and the maker is a
person who does not understand the English language,
the note shall be attested
by-
(a) a magistrate; or
(b) a Commissioner; or
(c) a district officer; or
(d) a barrister and solicitor; or
(e) a notary public; or
(f) a Commissioner for Oaths; or
(g) a justice of the peace,
who
shall explain the terms thereof to the maker and shall certify on the note that
such maker appeared to understand the meaning
thereof. The money borrowed shall
be paid by the lender to the borrower in the presence of the person
attesting.
(Inserted
by 7 of 1966, s. 25)
Note inadmissible in evidence unless duly made
96.
No promissory note shall be admissible in evidence in any of the civil courts of
Fiji unless made in the manner required by the
provisions of this
Act.
(Inserted
by 7 of 1966, s. 25)
PART V - SUPPLEMENTARY
Good faith
97.
A thing is deemed to be done in good faith, within the meaning of this Act,
where it is in fact done honestly, whether it is done
negligently or
not.
Signature
98.
In the case of a corporation, where, by this Act, any instrument or writing is
required to be signed, it is sufficient if the
instrument or writing be sealed
with the corporate seal. But nothing in this section shall be construed as
requiring the bill or
note of a corporation to be under seal.
Computation of time
99.
Where, by this Act, the time limited for doing any act or thing is less than
three days, in reckoning time, non-business days
are excluded. "Non-business
days" for the purposes of this Act means:
(a) Saturday or Sunday;
(b) a bank holiday under the Public Holidays Act;
(c) a day appointed as a day of public rejoicing or mourning. Any other day is a business day.
(Amended by 17 of 1972, s. 3.)
When noting equivalent to protest
100.
For the purposes of this Act, where a bill or note is required to be protested
within a specified time or before some further
proceeding is taken, it is
sufficient that the bill has been noted for protest before the expiration of the
specified time or the
taking of the proceeding; and the formal protest may be
extended at any time thereafter as of the date of the noting.
Protest when notary not accessible
101.
Where a dishonoured bill or note is authorised or required to be protested, and
the services of a notary cannot be obtained at
the place where the bill is
dishonoured, any householder or substantial resident of the place may, in the
presence of two witnesses,
give a certificate, signed by them, attesting the
dishonour of the bill, and the certificate shall in all respects operate as if
it were a formal protest of the bill. The form given in the Schedule may be used
with necessary modifications, and if used shall
be sufficient.
Dividend warrant may be crossed
102.
The provisions of this Act as to crossed cheques shall apply to a warrant for
payment of dividend and to a banker's
draft.
For
the purposes of this section the expression "banker's draft" means a draft
payable on demand drawn by or on behalf of a bank upon
itself, whether payable
at the head office or some other office of the
bank.
(Amended by 2 of 1945, s. 24.)
Savings
103.-(1)
The rules in bankruptcy relating to bills of exchange, promissory notes, and
cheques, shall continue to apply thereto notwithstanding
anything contained in
this
Act.
(2)
The rules of common law including the law merchant, save in so far as they are
inconsistent with the express provisions of this
Act, shall continue to apply to
bills of exchange, promissory notes, and cheques.
SCHEDULE
(Section 96)
FORM
OF PROTEST WHICH MAY BE USED WHEN THE SERVICES OF
A
NOTARY
CANNOT BE OBTAINED
Know
all men that I, A. B. [householder], of ........................... in Fiji, at
the request of C. D there being no notary public
available, did on the
.................. day of ................... 19 ............ at ...............
demand payment (or, acceptance)
of the hereunder written, from E. F. to which
demand he made answer [state answer, if any] wherefore I now, in the presence of
G.
H. and J. K., do protest the said
(Signed) A. B.
G.H.)
J.
K.)
Witnesses.
N.B.
The Bill or note itself should be annexed, or a copy thereof and all that is
written thereon should be underwritten.
Controlled by Ministry of Finance
------------------------------------------------------------
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/consol_act/boea148