Promissory note

A change ( in the 16th century is shortened for bill of exchange ) is a security that contains an unconditional payment order by the issuer to the drawee to pay to those or to a third party (beneficiary, payee ) at a certain time in a certain place a certain amount of money. An accepted change ( "pulled" and signed by the drawee ) accept is called.

The change is a certificate and a "Born Order Paper". It is therefore transmitted only by endorsement. The right of a change can only be made by presentation of the bill. The existence, the maturity and the enforceability of the obligations arising out of changes which occur after acceptance by the drawee are divorced from the claim from the underlying transaction in respect of which the change is made ​​( abstract securities ).

• 8.1 Statutory components
• 8.2 Commercial Components
• 8.3 Optional Ingredients
• 8.4 blank bill
• Represented 8.5 components graphically

The change is, in economic terms, as the check is a security of payment and credit transactions. Unlike banknotes and coins is the change not legal tender. An obligation to accept bills of exchange does not apply to the payment of a claim for payment. One change is to correct a liability in doubt as conditional payment is not made in lieu of (→ performance).

The change has lost its significance in our daily business and as part of SME financing and is now before only in very limited numbers, so banks have set up this business in part, and the change in the training of bankers is no longer a subject of instruction. The reason for the loss of significance of the change is to see one that has not been able to make the change " machinable ". Because of its instrument property can be handled only by changing the high number of personnel and expenses. It adds new effective ways of payment transactions, in particular the transfer, the debit and the credit card through which can bring the advantages of swap with aspects of automation and rationalization of the banking world in harmony. For another, even the elimination of the Rediskonts as a good source of refinancing to the fact that the discount store was meaningless ( short-term loan by banks on the basis of bills of exchange ).

A change of the issuer ( drawer ) to the exchange party ( drawee ) is sent, called draft or remittance (falsely Remesse, Rimessa from Italian and French coach house, sending back '). However, this designation is (except in Switzerland) today hardly use. Exchange in which the issuer and the drawee are the same person, are called promissory note ( promissory note ).

Hedged statement

The change is a debt security. He is a special form of the bourgeois legal statement. By issuing a change of a three-person relationship is established, which contains a double authorization:

• The drawee is authorized by the drawer of a bill to make on his behalf to the beneficiary money in its own name;
• The beneficiary is authorized by the issuer to levy the money in the account in his own name.

The basic business is business, it is assumed and issued on the basis of which the change. The drawee is not made ​​without any legal basis on account of the exhibitor to the beneficiary. The drawee intended by the vesting of the sum of money to the beneficiary, the correction of a liability to the issuer ( eg, a purchase money obligation ), or the granting of a loan ( credit change). The exhibitor is not allowed to turn the beneficiary a sum of money on his account without any legal basis. Even the exhibitors intended by paying a sum of money by the drawee to the beneficiary the correction of a liability to the beneficiary or the granting of a loan. The legal relationship, which the drawee perceives the payment obligation of the exhibitor on his account due, is called coverage ratio. The debt ratio, based on which the originator wishes to leave by the drawee get a sum of money to the beneficiary, ie value relationship. Between the drawee and the beneficiary is referred to law enforcement, Zuwendungs ​​or redemption ratio.

Following the adoption of the bill by the drawee (Art. 28 para 1 WG) the securitized in the exchange certificate duplicate authorization strengthened to an abstract promises of payment between the drawee and the beneficiary. If the exhibitor has announced the change on remittances in payment, without the drawee has accepted the change, the exhibitor is liable for the amount of money in addition to the debt coverage ratio of the addition ( and abstract ) (Art. 9 para 1 WG), it unless the exhibitor has excluded this recourse.

Pay the related exchange sum to the beneficiary from, he is freed in the amount of a debt from the coverage ratio to the exhibitor. The position of a creditor arising from the adoption of a bill of exchange promissory abstract proposition can be given deposit payment. If the exhibitor to change his part in payment, then his pay debt from the value relationship, even if the drawee has accepted the change, be canceled only with the payment of the drawee to the beneficiary. This is explained by the fact that the Beneficiaries of an assumption only the legal validity and can not be the credit standing of its claim from the abstract obligation unsure. In addition, the payee does not have a credit quality securities, shall be liable in addition to a claim from the coverage ratio of the exhibitors the remittances from the exchange for the payment of the bill; this liability is essential (Article 9 WG).

Functions of the change

Means of payment

Once an accepted bill can be well used because of its good round ability ( endorsement, good faith acquisition ) as payment. Even a not yet accepted bill is because of the assumption of liability of the exhibitor for it. For example, a buyer 's purchase price debt not paid in cash, because he has no money, he can also accept a certificate issued by the Seller. Half deposit is the seller then creditors of a substantiated by accepting the change abstract obligation. He can pay for his part, by endorsement of the bill with the change.

The exhibitor (usually this is the creditor, also called drawer ) instructs his debtor, here also called drawee ( drawee ), in exchange for paying a certain day at a certain place the amount given in exchange. As long as the bill has not been signed by the debtor ( transversely), it is called draft (from Latin trahere = "drag" ). If the debtor accepts the statement by his signature, called the exchange and acceptance. If he Writes the exchange form before the exhibitor has completed, it is called a Blankoakzept.

The owner may pass on the exchange to third parties and thus use it for his part as payment. In this case, the relay statement must ( the endorsement ) are recorded on the back of the switch from the owner ( endorser ). The Wechselnehmer ( payee or endorsee ) thus acquires full rights to the change. Such transfers can be done any number of times.

At maturity, the change is usually not directly presented to the debtor to pay, but indicated (the number in exchange Paying Agent ) shall forward the bank for payment.

Loan funds

The main economic function of change today is the credit function, which occur here two scenarios: trade bills and credit exchange. In the following examples: A = -related, B = Issuer, C = Beneficiary

Trade bills

When trading exchange, the credit function based on the fact that very often a change is to be paid only at sight or at a specific maturity date. Economically granted the exhibitor to the drawee credit. Because loans in commerce do not maintain to be nothing assigned, the total change can also earn interest.

Example: A buys goods from B. A pays not cash, but will accept a change issued by B, which states that A has to be paid within three months usually a certain amount of C. C is the one that the B in turn owes money. Instead of paying cash at C, B ​​is the change to C. C is now a security in his hands, which represented a claim against A ( that is, has for content ).

Credit exchange ( finance bills )

A credit function, the change even if the drawee accepts the change, therefore, to give the exhibitor a receivable from the abstract obligation. The coverage ratio is then in a loan agreement. Here the related grants the Exhibitor a loan. Also, the exhibitor may grant the payee a loan by paying him through the delivery of the change, a kind of loan proceeds.

Example: A absorbs at B credit by A accepts a certificate issued by B change. B is the change now to a third party, C, to pass as payment.

Bills discounted business

Furthermore, a change will already discounted before maturity of a bank; that is, he is prematurely paid against an interest rate discount ( discount). In addition to the discount claim the banks (not the country's central banks) sometimes a fee discount commission. It is calculated as the interest rates on the exchange amount. This business has however declined in importance since the abolition of the possibility of Rediskonts ( favorable refinancing at the Bundesbank on the basis of discounted bills ).

Securing means

The safety function of the change resulting from the legal background. So it is important that ( the endorser may exclude its liability, however, if he, the words " No Liability" adds his signature ) with the signature of the drawer, the drawee, if applicable, the guarantor and, if necessary, in the wake of all possible endorsers change, are virtually dismissed from the burden of proof for the actual exist of an obligation. Even if the debtor does not pay as agreed, the note holder has a good chance yet to come to his money. Although one must say caveat that civil and criminal liability are high, however, that we can expect nothing more from bankrupt companies. He is, for example, entitled to a change endorsed to require payment of his predecessor, if not the endorsements liability was excluded. Also, a court enforcement is to achieve a change in a shorter time because yes, as stated above, an examination of the claim is omitted. In the event that a change is in default, should be charged ( by a notary ) within two working days of a protest. The most common reason for protest is probably due to lack of payment. Addition, however, can be also protested for non- acceptance of a bill of exchange.

An unredeemed and protested change can serve as part of the opening of insolvency proceedings as evidence of the insolvency of a debtor.

Especially in poor debtors use the backup feature of the bill alone the Wechselnehmer often not enough. In such a case it is supplemented by a guarantee ( aval ) that must be noted on the bill, or a bank guarantee.

Liquidity funds

By cashing at a bank to get paid less the discount the amount.

Handling of change

Exhibition

The Instructional, such as the seller, exhibits the change; it acts as an exhibitor of the change.

For by the parties liable a corresponding change of legal capacity is required ( in Austria: upon reaching the age of 18). The independence of the exchange statements implies that an invalid signature does not affect the validity of the remaining signatures. Note also the charging of the change ( in Austria: drawn and exchange their own 0.25 % of the total change ).

Exchange control

The exchange control was a transfer tax, which was levied on solid and personal change, which were domestically in circulation. It was 0.15 DM per section of 100 DM tax is paid by affixing tax stamps change on the back of the bill. Exchange tax stamps were available at the post offices. The exchange control was to the federal government.

Since the 17th century it was collected in the form of a stamp duty. 1923, the tax was reformed. After the tax has not been levied by the war-related tax simplification Regulation from 14 September 1944 she was living at the date of currency reform on 20 June 1948 at again. On 1 January 1992, the exchange control was abolished in accordance with Financial Market Promotion Act of 22 February 1990.

Exchange debt

In Swiss law, the presence of a change (or check ) a prerequisite for initiating a change of debt is (Art. 177 of the Bankruptcy Law ).

As a special form of bankruptcy debt debt exchange is possible only against the debtor, which plays bankruptcy ability (otherwise invalidity of the debt ).

Once the bankruptcy is opened, then the ordinary rules of formal bankruptcy laws apply.

Form

In order to change the written form is prescribed. This will change to a certificate. In addition, there are components that must carry a mandatory exchange. This formal exchange rigor leads to violations of essential procedural requirements to the nullity of the bill, as an investment. A vain change, however, can be reinterpreted as a civic statement.

But there is no form forced on the formal exchange rigor beyond. A change must not be issued on a form, although in practice usually prepared for removable forms are used.

Legal components

Under German law are expressly in Article 1 WG, called (see AC Act):

• Date and place of issue
• ( Be the exchange must be in the document text in the language of the bill called ) change clause
• Expiration time (see also Respect days)
• Name of the AC contractor
• Unconditional order to pay a certain sum ( necessarily, so without conditions)
• Name of the drawee ( drawee of the bill is the principal debtor )
• Payment
• Signature of exhibitor

Compliance with these requirements is an important prerequisite for the changing legal protection of the payment order, especially in a possible documentary evidence. Apart from decay time of payment and place of issue all the ingredients are essential ingredients, there is no such, there is no substitution. Erasing, crossing out or tearing make a change invalid if doing an essential component is destroyed. Through subsequent forgery the validity of the change is not affected. The signatories are liable for the particular version that they have signed.

Commercial components

• Repetition of the place of payment and the expiration date
• Repetition of the change in total numbers
• Address of the exhibitor
• Stamp and copy number of the incoming receiving bank (copy number is the registration number at the bank)
• Paying agent or note home

Optional ingredients

• Endorsement (transfer to a new beneficiary, the replacement may only be transferred with and without liability)
• Guarantor (a change guarantor's liability shall in principle selbstschuldnerisch )

Blank bill

A blank bill contains - for now - only the signature of the drawer or the acceptor ( drawee ). The one who takes this blank bill itself, the Blankettnehmer, has a filling authorization, which allows him to make the blank bill subsequently to a form valid exchange.

Problems arise in the case of empowerment adverse filling, especially if third parties want to make the change law. It is to differentiate whether the change has already been filled in or not:

• Change completed: Bona fide (no intent, gross negligence ) purchasers are protected.
• Change is not yet completed: Again, the good faith (no intent, gross negligence ) is protected purchaser. Completing the bona fide purchaser a blank bill, then is he basically no Obligation to respect his contractual partner. Should it be at this a suspicious person, but gross negligence may be the acquirer and thus eliminated the good faith.

Components shown graphically

Assumption

The drawee before acceptance is not yet committed from the exchange, but only authorized to make payment to the beneficiary. Only when the drawee accepts the obligation meets him from the exchange for payment. This pledge is called acceptance ( acceptance).

With successful acceptance of the drawee becomes the principal debtor of the change ( drawee ). He is now obliged to pay any authorized holder of the bill at maturity.

The law is, as stated above, assuming that the change is resubmitted to the drawee only after the exhibition for acceptance; in practice, however, the majority of the change is already accepted directly at the exhibition.

On the form, the assumption is usually made ​​by a signature cross on the left side.

Please note are Vorlegungsge and prohibitions:

• Vorlegungsgebote legal: in forbearance Jump
• Gewillkürte: if the exhibitor requires presentment for acceptance

• Unacceptable draft: The exhibitor prohibit / restrict, for example, " No adoption before 15 May 2005." If nevertheless submitted that adoption is possible, but the note holder has no rights of recourse.

Transmission

By way of assignment

The transfer of a note receivable, as demands in principle, be transferred by assignment. Here, the normal civil rules apply: The assignment is available to business, which is carried out due to the acquisition or sale. The debt remains the same, only the creditor changes. The transferor ( assignor Santander) warrants the accuracy and collectibility.

However, the assignment has in the case of a change three major drawbacks:

• The transferor shall be liable only to his contractual partner, the assignee, but not further Nachmännern ( no guarantee liability) if the assignee even further assigned.
• The debtor can all objections which he has against the assignor may also impose against the assignee.
• The note receivable can not be acquired in good faith by way of assignment (receivables can grds. Not be acquired in good faith ).

By endorsement

The envisaged for the change mode of transmission is that of endorsement. The beneficiary stated to "For me, to the order of X" and signs. An endorsement made ​​on the basis of a Begebungsvertrages between the beneficiaries, now the endorser, and the new guardian, the endorsee.

The endorsement has the following functions:

• Legitimizing function: guardian is, who is the holder of a bill and can boast an unbroken on this Indossamentkette ( number of endorsers ). The owner is then formally legitimized; on a substantive authority as that of the assignment is not the point - the change is ultimately an abstract paper.
• Transport function: The owner of the change is fully protected. Firstly, the change can be acquired in good faith, if it enters foreign ownership, without Begebungsvertrag. Secondly, the owner may be opposed no objections ( objection exclusion ).
• Guarantee function: Basically an endorser of a bill for payment is liable; an endorser, this liability but limited by Rektaindossament or excluded by a clause very afraid.

Presentment for payment and due date

On the due date is the change from the principal debtor to pay the drawee. The maturity but may be extended by issuing a moratorium or Prolongationswechsels.

Prolongationswechsel

The principal debtor accepts a new exchange with a later expiration date. The creditor must return the Erstwechsel.

Presentment for payment

The change has to pay the drawee or paying agent, usually the house bank of the person, to be submitted.

Change types

Acceptance

The acceptance covers both an accepted drawn bill, as well as the signature of the drawee on the exchange.

• A Kurzakzept is simply the signature of the drawee on the exchange without further additions.
• A Vollakzept is when other than the signature of the drawee also amount and place and date of signature are mentioned.
• A Blankoakzept corresponds to an acceptance on a non- completed exchange form.

• A Bürgschaftsakzept or Avalakzept, as additional security, the signature of a guarantor will be required.

Prolongation

The prolongation, also called Wechselprolongation, is the postponement of the payment is due by the debtor to the creditor, if both parties (debtor and creditor -related Exhibitors) agree with this.

The history of the change

Exchange certificates are already known from the second millennium BC; in the Roman Empire used to change already as payment.

In the 12th century the change returned under completely different conditions and, accordingly, in another form, and is therefore only the coarse function according to the ancient customs of change comparable. He initially served to avoid the Münztransports and to facilitate the Münzwechsels of some sort to another. It was also possible to bypass the ecclesiastical prohibition of interest. Soon it was from the exchange of coins with value clause ( note on the cash payment at temporary exhibition ) the credit exchange without currency clause. This was only on maturity of the bill to redeem in cash, thus providing a bond represents a return on loans was forbidden to the believers in Christ, for the Church sat each Interest Survey identical with usury. Thus, for example, wrote before the Second Lateran Council of 1139:

Without interest no cash could be provided because of the high risk of default. Since the change lending rates, however, appeared as a change fee or in exchange rates of the types of coins were hidden, the church could not complain of a violation of the prohibition of interest.

The development of the exchange of coins with value credit clause to change without currency clause was a revolution of trade and credit system the same and was an important component of the " commercial revolution " of the Middle Ages. The buyer paid using a credit change with a written promise to pay, the exchange certificate, or the bill of exchange. In this he undertook to pay to the beneficiary at a certain time a certain amount of money. The payment period of almost always take the next fair or market day, so could be six months or a year. With the shortening of the distances between the fairs were shorter and the pay periods until einbürgerten different deadlines. These periods depended on where the exchange issued, and where he should be redeemed. During this period usually was the purchase of goods by means of exchange (ie Letter of Credit ), and then the sale of goods for cash, which could then be used to redeem the exchange. It quickly became accepted that the change - first with the permission of the original participants - was also passed.

The change took his cash function from the instructions of the money changers at fairs and markets, the Campsores. The buyers at international trade fairs often did not have the lawful currency of the country fair and were then forced to change money at a Campsor. The seller put the purchase price proceeds of their buyers back into AC ( Lettera di cambio ). In them often, there was talk that they were at the next exhibition ( " di fiera fiera in " or " à la foire prochaine " ) payable. In April 1250 appeared in Genoa on first formalized documents, in which a debtor known as a payment obligation and a later repayment promised.

After the change in the 15th century endorsable (ie, by mere signature transferable), he quickly became the paper money of the merchants, and thus become the main funding for the International Sale of Goods. The endorsement was given this name because on the back had to appear the hands of the handover ends. But the Indossierbarkeit not handed out. The change had to be enforceable before a secular court. This was enforced for the first time in 1405 in Barcelona. As long as he was not enforceable, its use was limited.

Before the change ( the buyer's bank, which took over the encashment of the bill on the due date ) was in fact a loan agreement between three fixed parties, the borrower (or buyer), the guarantor and the beneficiary ( the seller who pay the bill on maturity could ). By endorsement, that is, by registering a new beneficiary ( endorsee ) on the back of the bill ( from Italian into dosso = on the back), the previously beneficiary ( the endorser ) transferred his rights to the endorsee. The change was from a person-related credit agreement to a transferable method of payment.

By introducing the Blankoindossaments, ie elimination of the transmission of the change to a specific person, so blanket transfer of rights to paid for in cash on the due date to the person submitting the change at this time, the change was in fact a bearer instrument. Thus, an anonymous paper money was created, a step of the change on the way to the bank note. A further step was to standardize the exchange. Banks made increasingly flat rate of change, and sold them to credit seekers against exchange fee. In parallel, they also took over the encashment of bills even before the Maturity Date, to deduction of a discount fee. Discount comes from discount ( cut into pieces ), since the discounting of indivisible change amount is broken down into small units of payment. With the founding of the Bank of England in 1694, this discounting could not take place only in coins, but also in notes that were redeemable turn into coins and thus an intermediate form between exchange ( credit money) and coins (cash) represented. Banknotes are in fact standardized (denominated in uniform amounts) view change ( ie due upon presentation in the bank, ie line of sight ).

Making the switch was the first securities, so that the emergence of the stock exchanges would have been unthinkable without the introduction of the change. The Italian origin of the change is due to the many changing legal concepts underpinning ( draft of Italian trarre " pull " of endorsement in dosso " on the back" ).