Negotiable Interests
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Topics include the concept of negotiability, certificates of deposit, various types of endorsements, etc.
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Negotiable Interests
- 1. Negotiable Instruments Chapter Seven NACM
- 9. The Uniform Commercial Code Chapter Eight NACM
- 17. The Legal Forms of Business Chapter Nine NACM
- 29. End of Session 4
Editor's Notes
- Review Learning Objectives with class
- There are two basic kinds of negotiable instruments; there are promises to pay money and orders to pay money. Drafts A draft (also known as a bill of exchange) is an instrument that orders someone else to pay. The order is given by the drawer , who issues the draft usually by signing it in the lower right hand corner. The one who is ordered to pay the money is called the drawee . The one who is to receive the money is known as the payee . Checks A check is a draft on which the drawee is a bank that is ordered to pay on demand. It is the most common form of a draft. It is drawn on a bank by a drawer, who has an account with the bank, to the order of a specified person or business named on the check, or to the bearer. MICR line on checks: First section – transit routing number (which includes Federal Reserve District (first two digits) and Federal Reserve Office (next two digits), and bank identification number (digits 5-8)) Second section – payor’s account number Third section – sequence number Fourth section encoded check amount See next slide for Special Types of Checks Notes A note (promissory note) is a written promise b one party, called the maker, to pay money to the order of another party, called the payee. Kinds of notes (see pages 183-184 of the text) Demand Notes Promissory Notes Collateral Notes Judgment Notes
- Bank Drafts A bank draft, sometimes called a teller’s check, or a treasurer’s check, is a check drawn by one bank on another bank in which it has funds on deposit in favor of a third person, the payee. Cashier’s Checks A cashier’s check is a check drawn by a bank upon itself. The bank, in effect, lends its credit to the purchaser of the check. Certified Checks A certified check is a check that is guaranteed by the bank. The bank acknowledges that sufficient funds will be withheld from the drawer’s account to pay the amount stated on the check. Money Order A money order is usually presumed to have the significance of cash. It is still important to be aware of the issuers identity and validity. Traveler's Checks A traveler’s check is similar to a cashier’s check in that the issuing financial institution is both the drawer and the drawee. The purchaser signs the checks in the presence of the issuer when they are purchased . Postdated Checks A check may be postdated when the drawer has insufficient funds in the bank but expects to have sufficient funds to cover the amount of the check at a future date. A postdated check is not usually covered in the bad check laws of the states. Sight and Time Drafts A sight draft is payable as soon as it is presented to the drawee for payment. A time draft is not payable until the lapse of a particular time period stated on the draft. Domestic Bill of Exchange A domestic bill of exchange is a draft that is drawn and payable in the United States. A draft that is drawn in one country but is payable in another is called an international bill of exchange or foreign draft .
- Domestic Bill of Exchange A domestic bill of exchange is a draft that is drawn and payable in the United States. A draft that is drawn in one country, but is payable in another is called an international bill of exchange, or foreign draft. Notes 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. Demand Notes A demand note, as its name implies, is payable whenever the payee demands payment. Promissory Notes Promissory notes come in the following forms: A single-name paper, a note signed by only one maker. Double-name paper is a promissory note signed by two or more makers or signed by the maker and indorsed by others. A straight note is the more common instrument, used merely as evidence of indebtedness. In a serial note, the amount to be paid is covered by a series of notes usually of equal amounts and with maturity dates equally spaced. Promissory notes are commonly used for bank loans. Collateral Notes A collateral note is a note that is secured by certain collateral, such as stocks, bonds, personal property, or mortgages. Judgment Notes Judgment notes are controlled by state law and have many technical requirements associated with them.
- What is a Certificate of Deposit A certificate of deposit (CD) is an acknowledgment by a bank of the receipt of money and its promise to pay the money back on the due date, usually with interest. Certificates of deposit generally pay more interest than regular savings accounts because the depositor cannot withdraw the money before the due date without penalty.
- Assignment A transfer of contract rights from one person to another is called an assignment. Commercial paper that does not meet all of the requirements of negotiability cannot be negotiated. It can only be transferred by assignment, which is governed by the ordinary principles of contract law. An assignment of commercial paper also occurs by operation of law when the holder of an instrument dies or becomes bankrupt. Negotiation Negotiation is the transfer of an instrument in such a form that the transferee becomes a holder. A holder is a person who is in possession of an instrument issued or indorsed to that person, to that person's order, to bearer, or in blank. Endorsements An instrument is endorsed when the holder signs it, thereby indicating the intent to transfer ownership to another. Endorsements may be written in ink, typewritten, or stamped with a rubber stamp. Common types of endorsements – pgs 186-188 of the text: Blank Endorsements: A blank endorsement consists of the signature alone written on the instrument. Special Endorsements: A special endorsement is made by writing the words “pay to the order of” or “pay to” followed by the name of the person to whom it is to be transferred and the signature of the endorser. Restrictive Endorsements: A restrictive endorsement limits the rights of the endorsee in some manner in order to protect the rights of the endorser. An endorsement is restrictive if it is conditional. Conditional Endorsement: A conditional endorsement, a type of restrictive endorsement, makes the rights of the endorsee subject to the happening of a certain event or condition. Endorsements for Deposit or Collection: used to get an instrument into the banking system for deposit or collection. Qualified Endorsements: A qualified endorsement is one in which words have been added to the signature that limit the liability of the endorser. General Endorsements: A general endorsement is without reservation or qualification.
- Before accepting a check marked “paid in full” make sure there is no dispute. The general rule is as follows: Dispute : If the claim is liquidated and there is no dispute as to the amount due, a check for a lesser amount than the claim, even though marked “In Full Account” does not settle the account. The creditor may keep the check and sue for the balance. Dispute : If however there is a bona fide dispute as to the amount of the claim, and the same claim is not liquidated, a check sent and marked “In Full Payment of Account” IS payment in full and the creditor must either return the check and sue for the amount claimed or accept the check in complete payment. One possible solution to this problem is to stamp all collection checks with a legend that states: “The check is accepted without prejudice and with full preservation of all rights pursuant to Section 1-207 of the UCC.”
- Review learning objectives
- Chapter Outline UCC contains 9 Articles. We will concern ourselves with 4 of those articles which relate to credit (Articles 2, 2A, 6 and 9)
- Article 2 of the UCC applies to sale transactions in goods. Goods are defined as all things (other than money, stocks and bonds) that are movable . Article 2 of the UCC is generally a part of the law of contracts. Article 2 states that a contract for the sale of goods for the price of $500 or more is not enforceable unless there is some writing sufficient to indicate that a contract for sale has been made between the parties. Definitions: Elements of contract common law offer and acceptance, mutual asset, capacity to contract, legality of subject matter and consideration – all apply. Merchant a person that deals in goods of the kind or otherwise hold itself out by occupation as having knowledge or skill peculiar to the practices or goods involved in the transaction. Commercial Unit is any unit of goods that is treated by commercial usage as a single whole. Title : Title passes to the buyer when the seller has completely performed his or her duties concerning physical delivery of the goods. Within the UCC, every contract has an obligation of good faith, or honesty in fact, in the transaction concerned, in its performance. Risk of Loss: Risk of loss depends on the terms of the agreement, the moment the loss occurs and whether one of the parties was in breach of contract when the risk of loss occurred. Risk of loss can be contractually addressed by using commonly accepted shipping terms. Commonly used shipping terms are shown on pages 194-195 of the text. Reclamation and Stoppage of Delivery: If seller discovers that buyer is insolvent before making delivery, the seller has right to withhold delivery until the buyer pays cash for the goods. The seller has the right to require the buyer to return any goods the insolvent buyer obtained from the seller within the previous 10 days. Section 546 of the Bankruptcy Code recognizes the rights of a reclaiming seller. Warranties: A warranty is a contractual promise by the seller regarding the quality, character or suitability of the goods sold . An express warranty is an oral or written statement, promise or other representation about the quality of a product . An implied warranty is a warranty that is imposed by law rather than by statement, descriptions or samples given by the seller. For examples of express warranties and implied warranties, see page 196 of the text.
- Consumers and businesses lease cars, television sets, furniture, and a variety of tools and equipment. Leasing allows the lessee to use valuable assets without making an initial large capital investment. Leases allow firms with limited capital budgets an alternative way to obtain resources. Leasing of goods is a type of bailment which is the transfer of possession and control of personal property for the benefit of both parties. Leases allow firms with limited capital budgets an alternative way to obtain resources. A lease contract is enforceable if the total payments to be made excluding payment for options to renew or buy are less than $1,000 or it there is a written agreement. General Default If either is in default under the lease the party seeking enforcement may obtain a judgment or otherwise enforce the lease by self help or any available judicial or non-judicial procedure. Remedies are cumulative. If a lessor discovers the lessee to be insolvent the lessor may refuse to deliver the goods and if the lessee is in default the lessor may take possession of the goods without judicial process.
- Merchants, owing debts, would sometimes sell out their entire stock of inventory for less than what it was worth. This left creditors with no way of reaching and selling the goods to obtain the money owed to them. Article 6: Bulk Sales, protects creditors from this practice, called bulk transfer . A bulk transfer is any transfer of a major part of the material, supplies, merchandise or other inventory of an enterprise that is not made in the ordinary course of business. (Under revised Article 6, the transferor must be going out of business as well.) The general concept of Article 6 is to protect creditors of a merchant by voiding a bulk transfer of his merchandise out of the ordinary course of trade, unless the merchant gives notice of the contemplated transfer to all known creditors at least 10 days before he takes possession. Requirements for bulk transfer: Buyer must require the transferor/seller to furnish a list of any existing creditors Parties must prepare schedule of property being transferred Buyer/transferee must give notice of transfer to all creditors Preparation of a schedule of distribution of proceeds to be given to all creditors by seller is required See page 198-199 of text. Creditor’s Actions A creditor receiving notice that a customer is selling under a bulk sale must immediately contact both the debtor and buyer to ascertain how much time will elapse before the sale; obtain a description of the property to be sold, its value, and the names of other creditors and the amounts due them; determine whether the debtor’s debts are to be paid in full or in part from the proceeds; and find out where claims should be sent. The creditor must move quickly in order not to be barred from relief under the law.
- Article 9 is probably the most important Article of the Code for credit Professionals since its scope reaches transactions whose intended affect is to create security interest in personal property. Using Article 9, an unsecured creditor can become a secured creditor. Secured Transaction Whenever the payment of a debt is guaranteed, or secured, by personal property owned by the debtor or in which the debtor has a legal interest, the transaction becomes know as a secured transaction.
- The UCC’s terminology is now uniformly adopted in all documents used in situations involving secured transactions. A brief summary of the UCC’s definitions of terms relating to secured transactions follows. A secured party is any creditor who has a security interest in the debtor’s collateral. This creditor can be a seller, a lender, a consigner, and even a buyer of accounts or chattel paper [UCC 9-102(a)(72)]. A debtor is the “party” who owes payment or other performance of a secured obligation. [UCC 9-102(a)(28)]. A security interest is the interest in the collateral (personal property, accounts, and so on) that secures payment or performance of an obligation [UCC 1-201(37)]. A security agreement is an agreement that creates or provides for a security interest [UCC 9-102(a)(73)]. Collateral is the subject of the security interest [UCC 9-102(a)(12)]. A financing statement (referred to as the UCC-1 form) is the document normally filed to give public notice to third parties of the secured party’s security interest [UCC 9-102(a)(39)]. These basic definitions form the concept of a secured transaction relationship between debtor and creditor. (From Business Law Today , Comprehensive 6th edition by Miller/Jentz, 2004. Reprinted with permission of South-Western, a division of Cengage Learning, formerly Thomson Learning: http://permission.cengage.com/permissions/action/start and 800-730-2214.)
- Review Learning Objectives with class
- Importance of Legal Form The credit professional must consider the form of business organization used by the debtor. It is important to know if the business will remain viable in the event of the sickness or death of one or more of the principals. Certain forms of organizations-namely, corporations-can raise additional funds more easily than others. Many business undertakings are so costly, they require a large investor pool from which to solicit funds. On the form of the business, the personal assets of the principals may or may not be available to support its debts. Principal Forms Proprietorship Partnership Corporation Limited Liability Company
- This form of enterprise is the easiest to organize and requires a minimum of legal knowledge and financial resources. Simply stated, the proprietorship is a business owned and operated by one person . This type of enterprise is the easiest to organize and requires a minimum of legal knowledge and financial resources. Management The most obvious concern about a proprietorship, from the creditor’s viewpoint, is that the owner has total control over the business. The owner may direct the entire business: Marketing, production, and financial management. If he or she gets sick-or worse- the business may simply stop, and along with it the cash flow that was destined to pay creditors. Continuity The business of a proprietorship ceases when the owner dies. In some cases, it might be continued by the family or estate, provided someone suitable to run the business can be found. In the event of a proprietor’s death and liquidation of the business, the creditors may not receive payment until the will is probated and the estate is settled. Capital The proprietorship generally seeks credit based only on the assets of the business and those of the owner. If they are inadequate, the owner may be forced to moderate expansion plans or to allow outside interest to invest in the business. The limited capital of the proprietorship may be a significant factor in a credit analysis. Liability The owner has a personal, unlimited liability for the debts of the business, which makes the proprietor very vulnerable to creditors. With certain exceptions, the personal assets may be claimed for the payment of business debts. The owner’s personal liability for the debts of the business often can strengthen its credit position.
- Partnership – is an association of two more persons to carry on as co-owners of a business in order to share the profits and losses. Continuity The partnership normally dissolves automatically upon the death of a general partner if there are only two partners, although it may continue long enough to enable the surviving partners to wind up the affairs of the business. The death of a limited partner does not usually terminate the partnership. Capital Compared to a proprietorship, the partnership can obviously command more invested capital. Profits are shared equally by the general partners, unless another agreement has been specifically reached and set down in writing by the partners. Partnerships are formed because one party can contribute business leadership and another party has money to invest. One of the attractions to the partnership form is that it does not pay federal income taxes as a business entity; the partners pay individual income taxes on their proportionate shares of partnerships income. Liability All general partners are jointly and severally liable for the debts of the business. This means that every partner has unlimited liability for the debts of the business. Each may also be required to pay the debts even though they were incurred by the general partners.
- A corporation is defined as a voluntary association of persons, natural or legal; organized under state or federal law and recognized by the law as being a person, fictitious in character, having a corporate name, and being entirely separate and distinct from the people who own it; having continuous life; and set up for some specified purpose or purposes. A corporation, being a creature of the state, has no “natural” rights and powers; it has only those granted by law. Its powers and purposes are fixed by charter and cannot be changed at will as in the case of an individual or partnership. For purposes of credit analysis, the financial responsibility is that of the corporation. A corporation is known as a domestic corporation in the state in which it is incorporated; in other states it is considered a foreign corporation . Certificate of Incorporation The articles or certificate of incorporation includes a description of the powers which the corporation expects to exercise. These are called the express powers of the corporation or powers of the corporation . The corporation is required to comply with the conditions of its charter. Ultra vires acts – those acts outside the powers of the corporation – are forbidden. Continuity Nearly every corporation is granted a charter in perpetuity. The corporation survives the death of any principal. Capital: Corporations can issue stock and thus have a larger potential source of capital. Having stock shareholders gives a corporation continuity of operation and financial strength. The corporation, being a legal entity, is required to pay taxes on its earnings in addition to those paid by its stockholders on the corporate dividend payments. Capital Stock Stock certificates issued by a company are evidence of corporate ownership in a proportion of the number of shares held to the total number of shares outstanding. Common Stock Represents all or a portion of the money that was received when the company issued its shares. Preferred Stock The claims on assets of preferred shareholders generally have a higher priority than do the claims of common shareholders. In the event of liquidation, preferred stockholders are entitled to be paid before common stockholders. Liability The stockholders have limited liability for the debts of the corporation. This liability is restricted to the amount each stockholder has invested.
- An S Corporation is a corporation in all respects, except that stockholders, rather than the corporation pay federal income taxes. Formerly known as Subchapter S Corporations. In 1958 some of the tax advantages enjoyed by proprietorships and partnerships were granted to small, newly formed corporations. This came about with the passage of the Technical Amendments Act, which modified the federal income tax laws to permit such corporations to be taxed as the individuals who owned or controlled them. Continuity The life span of an S Corporation is the same as that for other corporations provided it meets certain requirements. Must have no more than 75 shareholders Only one class of stock Shareholders must be, and must be persons. Corporate shareholders and partnerships are excluded. Certain tax-exempt corporations (501(c)(3) corporations, are permitted to be shareholders. Capital The net income of an S Corporation is divided into two general classes: that distributed to stockholders; that retained in the business. Because S Corporations usually pay out profits each year, the net worth tends to remain the same, but cash funds may eventually be depleted. Liability An S Corporation is a corporation in all aspects, except that the federal income taxes are paid by the stockholders rather than the corporation. Likewise, any losses sustained by an S Corporation pass to the shareholders and can be used as deductions from other business income the stockholder may have on their personal tax returns.
- The basic concept of the LLC is that an unincorporated business association which desires to do business under the corporate structure may do so by combining the benefits of a traditional C corporation and a partnership. Like an “ordinary” or C corporation, the members of LLC’s (similar to stockholders) enjoy limited liability. LLC’s are creatures created for tax advantages only and do not differ in the overall corporate structure for those extending credit. In order to retain the tax status of a partnership the federal government requires that they have six characteristics: Associates An objective to carry on business and to divide the gains there from Continuity of life “of the entity” Centralized management Limited liability Free transferability of assets How an LLC is Formed In order to retain the tax status of a partnership, an LLC must conform to certain requirements set out in the federal law. Credit executives should be familiar with these requirements, as the failure of a customer that is an LLC to comply with these standards could create a substantial adverse tax impact which could seriously impair the entity’s ability to pay its debts to its trade creditors. Retention of Partnership Status There are three specific ways one can avoid possessing the three characteristics that can tip the balance toward being more of a corporation and less of a partnership: Continuity of Life, Free Transferability of Assets, and Centralized Management. See page 239 of the text for a description of these characteristics. Considerations for Creditors In general, an LLC has the authority to conduct business, enter into contracts, and transact any type of business in accordance with its bylaws just as if it were a C corporation. When dealing with an LLC, creditors should recognize that there may be an anticipation of losses by those who have formed the entity. See page 240 of the text for a list of considerations that should be reviewed when dealing with an LLC. Special Tax Exceptions While most states will view an LLC as a partnership for state taxes when properly structured, rules for individual states vary. In some states LLCs can elect to be taxed as corporations for state tax purposes.
- Difference between LLP and LLC LLP designed for professionals who do business as partners in a partnership. Limited liability company is an unincorporated business that does business under the corporate structure by combining the benefits of traditional C corporation and partnership. Liability In an LLP, partners are not held jointly and severally liable for the acts of other partners, as they would be in a regular partnership. In an LLP, partners avoid liability for the malpractice of the other partners. In some states laws provide proportionate liability, or separate liability determinations for each partner relative to obligations and indebtedness. Family Limited Liability Partnerships FLLPs are limited liability partnerships where all partners are related to each other or a person acting in a fiduciary capacity for a person so related. In some states FLLPs are accorded additional advantages. It is important to understand state law when extending credit to these entities. Limited Liability Limited Partnerships The LLLP or limited liability limited partnership is a type of limited partnership. Only a few states expressly provide for LLLPs. The distinguishing feature of the LLLP is that liability for all partners, including general partners, is limited to the amount of their investment in the firm . Dissolution LLPs can be dissolved by agreement of the partners, by death, incompetence, expulsion or withdrawal of a partner or by law.
- A joint venture , also called syndicate , is a combination of two or more persons, including corporations, formed to undertake a specific, and usually large, contract or project. Often the transaction is too large in scope to be handled by any one of the participants alone. Participants often bring unique resources to the group, such as technical knowledge, capital, ability to negotiate for the business with the proper persons, competent personnel to handle the work, and sources of materials which are needed to meet the contract specifications. For credit analysis purposes a joint venture is similar to a partnership. Continuity Usually the length of time it will take to complete the transaction as specified in the contract. When the project is completed it is presumed that co-venturers will no longer be able to bind each other to an extension of credit. Capital The capital available to the joint venture includes all resources of the co-venturers, in a technical sense. It is usual for the venture to keep a separate set of books. In that way, the assets committed to the contract are segregated. Liability Co-venturers are usually held jointly and severally liable for the debts of the joint venture. Where the liability of the co-venturers is established, it is important to know the financial strength of the parties.
- Cooperative Societies This form of organization is not usually encountered by the credit department, except such industries as lumber, groceries, agriculture, and dairy products. Cooperative societies are organizations of mutual help and betterment, formed when individuals or corporate businesses combine their financial, capital, and other resources to advance their particular trade or industry. By this combination, they seek to obtain marketing and/or purchasing advantages. Extension of credit should be based on balance sheet numbers and member support as indicated by the “profits” earned. Not-For-Profit or Nonprofit Organizations The designation, not-for-profit, is recognized for certain organizations by the Internal Revenue Service. Not-for-profit organizations may be either corporations or associations. They are often formed to carry out work or business as a service to the community rather than for profit.
- In addition to knowing the legal form of customers, the credit professional is often asked to appraise the credit significance of organizational changes. See page 245 for list in text. Affiliated Interests A person is said to have affiliated interest when he or she is a principal in more than one company. The credit executive should examine the financial statements of each corporation dealt with. Changes in Legal Composition One of the more complex problems faced in credit analysis is a change in the legal composition of an account. A business often progresses from proprietorship to partnership to the corporate form. Parent-Subsidiary Relationship A corporation which owns more than 50 percent of the stock of another corporation is said to be the parent of its subsidiary. Subsidiaries may be partly owned or wholly owned. In the eyes of the law, the parent and its subsidiary are generally considered as separate entities, with no inter-company liability for debts. Operating Divisions A credit executive who approves sales to a division of a customer need not analyze the division as a separate entity. A division is an internal arrangement of a corporation made for the convenience of its management. Mergers and Consolidations are statuary procedures regulated by state law. They involve the complete integration of corporate entities, not just their assets and liabilities. In a merger of two corporations, the shares of stock in one company are exchanged by their holders for shares in the others, which will be the survivor corporation. A consolidation is a somewhat different procedure. A new corporation is formed. Purchase of Assets This type of transaction between two corporations does not affect their positions as separate and unrelated concerns. Any type of assets may be purchased, though usually it will be inventory, fixed assets or intangibles such as methods, processes or patents.