In conditions of financial instability, it has become popular to formalize monetary obligations by issuing their own bills. Being a security, a bill of exchange gives the creditor more guarantees than the debtor’s usual contractual obligation to pay for goods, work or services, since the received bill of exchange can be sold or transferred to another counterparty in exchange for goods (work, services). However, settlements with bills of exchange have their own specific risks. The slightest violations in the rules for its preparation and details lead to the fact that it will be almost impossible to receive the payment.
Form defects that invalidate a bill of exchange
A bill of exchange is a security, therefore, in accordance with the requirements of Article 142 of the Civil Code, it must contain the mandatory details provided for by law, namely the Regulations on bills of exchange and promissory notes, approved by the resolution of the Central Executive Committee and the Council of People's Commissars of the USSR dated 08/07/1937 No. 104/1341 (hereinafter - Regulation No. 104/1341). In this case, all details can be divided into two types - mandatory and optional (replenishable).
The absence of at least one of the required details entails the nullity of the bill as a security (clause 2 of Article 144 of the Civil Code of the Russian Federation). As arbitration practice shows, if a mandatory detail is present, but indicated incorrectly (in violation of the rules of Regulation No. 104/1341), then it is the same as if it is not there at all - in this case, the bill of exchange is also invalid.
The nullity of a bill means that the norms of bill legislation do not apply to it. In other words, the bill turns into a regular promissory note. The holder of the bill has the right to bring a claim based on such a document, based on the general norms of civil law on obligations (clause 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 1997 No. 18 “Review of the practice of resolving disputes related to the use of a bill of exchange in economic circulation”). But it is obvious that in the absence of other grounds for the debt (agreement, etc.), collecting payment is much more difficult, if not completely impossible.
As for optional bill details, there are only three of them. Firstly, this is the payment term. If it is not specified, then the bill is considered issued on condition of payment “at sight” (Article 2, 76 of Regulation No. 104/1371). Secondly and thirdly, this is the place of payment and the place of drawing up the bill. If these details are missing, they are filled in according to the rules of Articles 2 and 76 of Regulation No. 104/1371.
Repayment of a bill
Income and expenses associated with the redemption of a bill of exchange for profit tax purposes are recognized as income and expenses from the sale of securities not traded on the organized securities market (clauses 2, 3 of Article 280 of the Tax Code of the Russian Federation). They are recognized on the date of presentation of the bill for payment:
- in income from sales
- the face value of the bill and the amount of interest accrued from the day following the day the bill was drawn up and until the day of its presentation for redemption, if the bill is interest-bearing (clause 2 of Article 280 of the Tax Code of the Russian Federation); - in sales expenses
- the actual cost of purchasing the bill, i.e. contractual value of goods, including VAT, in payment for which it was received (clause 3, 29, article 280 of the Tax Code of the Russian Federation); - in non-operating expenses
- the amount of discount or interest taken into account as part of non-operating income earlier (clause 3 of Article 280 of the Tax Code of the Russian Federation).
EXAMPLE On January 19, 2016, an organization shipped goods worth RUB 572,000. (including VAT - 72,000 rubles). In payment for the goods, on January 20, 2016, the buyer transferred his own discount bill with a nominal value of RUB 612,000. and with a maturity date of April 29, 2016. The discount amount on the bill is 40,000 rubles. (RUB 612,000 – RUB 572,000). The circulation period of the bill is 100 days. (from January 22, 2016 to April 29, 2016). For profit tax purposes, the organization recognized a discount in non-operating income: – 4800 rubles. (40,000:100 days × 12 days) – as of 01/31/2016;– 11,600 rubles. (40,000:100 days × 29 days) – as of 02/29/2016;– 12,400 rubles. (40,000:100 days × 31 days) – as of March 31, 2016, April 29, 2016, the organization presented the bill of exchange for payment. As of this date, she will reflect in tax accounting: - income from the sale of the bill - in the amount of 612,000 rubles; - expenses from the sale of the bill - in the amount of 572,000 rubles; - non-operating expenses in the form of a discount previously taken into account as part of non-operating income, - in the amount of 28,800,600 rubles. (RUB 4,800 + RUB 11,600 + RUB 12,400).
What is considered the absence of a bill mark?
A bill of exchange is invalid if its text does not contain the so-called bill of exchange mark - that is, the word “bill of exchange”. This is a mandatory requirement (clause 1 of article 1 and clause 1 of article 75 of Regulation No. 104/1341). In this case, the text of the bill is considered to be the promise itself (in a promissory note) or the offer (in a bill of exchange) to pay a certain amount. This is explained in paragraph 5 of the joint resolution of the Plenums of the Supreme Court and the Supreme Arbitration Court No. 33/14 dated December 4, 2000 “On some issues in the practice of considering disputes related to the circulation of bills of exchange” (hereinafter referred to as Resolution No. 33/14).
Therefore, if there is no bill of exchange mark directly in the text of the document, it is not considered a bill of exchange, even if it is named as such in the title. The title has no legal significance (resolution of the Federal Arbitration Court of the Moscow District dated April 24, 2001 in case No. KG-A40/1772-01).
It must be emphasized that, according to Regulation No. 104/1341, the bill mark represents precisely the word “bill”. Consequently, no other word or expression (for example, “draft”, “promissory note”, “promissory note”, etc.) can replace it.
What wording of the obligation to pay will make the bill void?
The text of the bill must contain a simple, unconditional obligation (if it is a promissory note) or an offer (if it is a bill of exchange) to pay a certain amount of money.
The wording of the text itself can be anything - Regulation No. 104/1341 does not specify it. Any expression denoting a promise or offer to pay is acceptable. For example, “I promise to pay on this bill” for a promissory note and “pay”, “I ask you to pay” for a bill of exchange.
The main thing is that the document does not contain any terms of payment, otherwise it is not considered a bill of exchange. For example, when there is such a clause: “This bill of exchange is accepted by the issuer only in payment for the delivered products.” Even if such a condition is not expressed in the offer or promise to pay itself, but in another part of the document (before the drawer’s signature, etc.), the court may regard the bill as void. In particular, this is exactly the conclusion that the Presidium of the Supreme Arbitration Court came to in its resolution No. 7430/99 dated March 21, 2000.
The amount must be marked with a specific numerical value. It is unacceptable to indicate it by citing the calculation algorithm in the text of the bill of exchange. For example, if in an agreement for payment for which the debtor issues a bill of exchange, the condition on the price is formulated not in the form of a fixed amount, but in the form of a procedure for determining it (depending on the terms of delivery, terms of shipment, etc.), then the bill must still give a specific fixed amount.
Defects in terms of payment terms
To recognize a document as a bill of exchange, it is important not so much that it contains a due date, but rather its correct indication.
Article 33 of Regulation No. 104/1341 lists four specific ways in which the due date of a bill of exchange can be indicated: at sight; in such and such a time from presentation (a viso); in so much time from compilation (a dato); on a certain day.
Deviations from these methods are permissible only if such a possibility is expressly provided for in Regulation No. 104/1341. In fact, only two deviations are allowed, and both of them relate to some clarifications in the “on sight” period (in other bills these clauses are not possible). The drawer may shorten or increase the period during which the holder has the right to present such a bill for redemption (as a general rule, he can do this within a year from the date of drawing up the bill). It is also possible to set a specific date before which the bill cannot be presented for redemption - “upon presentation, but not earlier than such and such a date” (Article 34 of Regulation No. 104/1341).
Any other deviations from the methods for determining the terms specified in Article 33 of Regulation No. 104/1341 entail the invalidity of the bill. Unlike the case when the payment term is not specified at all, if the term is incorrectly specified, it is not considered that the bill is paid “at sight”. Meanwhile, it is the incorrect formulation of the terms that most often becomes the reason for the insignificance of the bill. For example, the drawer indicates the maturity date “at sight, but not later” or “at such and such a time from sight, but not earlier.” These options are unacceptable (decrees of the federal arbitration courts of the Volga-Vyatka District dated November 15, 2002 No. 108/3, West Siberian District dated March 5, 2003 in case No. F04/2061-672/A45-2003). They do not correspond to the methods for determining the payment period, which are specified in articles 33, 34 of Regulation No. 104/1341.
In practice, promissory notes sometimes write the payment period “until such and such a date” or “not earlier than a specific date.” Conflicting arbitration practice has developed regarding the validity of such bills. In most cases, the courts recognize them as void, since there is no such payment period in Regulation No. 104/1341 (decrees of the federal arbitration courts of the Central District dated November 27, 2001 in case No. A35-2867/01-C22, Ural District dated January 17, 2008 No. F09 -11287/07-С4). But there are also examples when the courts consider such an indication of the payment period to be quite acceptable for a bill of exchange (resolution of the Federal Arbitration Court of the North-Western District dated June 10, 2008 No. F04 4050/2008 (7575 A70 16)). In any case, given the controversial nature of this option, such wording is risky for the bill holder.
If the payment period for a bill of exchange is made dependent on some conditions, then this contradicts the very nature of the bill of exchange as an abstract obligation. For example, the payment period “after so many days from the date of receipt of funds in the current account of the drawer” is not considered definite. It is caused by an event for which it is unknown whether it will occur or not. Such a document does not have bill of exchange force (clause 5 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 18).
Also, consecutive payment terms are not allowed in a bill of exchange (Article 33 of Regulation No. 104/1341). What is considered a consecutive period is not disclosed in the legislation. But the courts understand this, in particular, as the simultaneous presence of different maturity dates in the bill of exchange (that is, alternative terms). For example, the court invalidated a bill of exchange that had two payment terms - “upon presentation, but not earlier than such and such a date” and “within three days from presentation” (resolution of the Federal Arbitration Court of the Moscow District dated April 2, 2003 in case No. KG -A40/1504-03).
Payment by bill of exchange for purchased goods
For profit tax purposes, income and expenses associated with the transfer of a bill of exchange in payment for goods are also recognized as income and expenses from the sale of securities not traded on the organized securities market (clauses 2, 3 of Article 280 of the Tax Code of the Russian Federation). They are recognized on the date of transfer of the bill:
- in income from sales
- the amount of debt to the supplier, in payment for which you transfer the bill of exchange (clause 2, 29, article 280 of the Tax Code of the Russian Federation); - in sales expenses
- the actual cost of purchasing the bill, i.e. contractual value of goods, including VAT, in payment for which the bill of exchange was received (clause 3, 29, article 280 of the Tax Code of the Russian Federation); - in non-operating expenses
- the amount of discount or interest taken into account as part of non-operating income earlier (clause 3 of Article 280 of the Tax Code of the Russian Federation).
The transfer of a bill of exchange is not subject to VAT, and the “input” tax on goods paid for by bill of exchange is accepted for deduction in the general manner (subclause 12, paragraph 2, article 149 of the Tax Code, letter of the Ministry of Finance dated March 21, 2011 No. 03-02-07/1- 79).
note
To confirm the transfer of a bill of exchange for payment of goods, issue an act of acceptance and transfer. In it, be sure to indicate the agreement under which goods are purchased, paid for by a bill of exchange, and the date of transfer of the bill of exchange.
EXAMPLE
Accounting for the transfer of a bill of exchange from the buyer-drawer to a third party in payment for goods.
On January 19, 2016, the organization shipped goods worth RUB 572,000. (including VAT – 72,000 rubles). In payment for the goods, on January 20, 2016, the buyer transferred his own interest-bearing bill with a nominal value of RUB 572,000. The interest rate on the bill is 32 percent, the maturity date is “at sight, but not earlier than 04/29/2016.” The circulation period of the bill is from January 22, 2016 to April 29, 2016. For profit tax purposes, the organization recognizes interest in non-operating income: – RUB 6,001.31. (572,000 rubles × 32%: 366 days × 12 days) – as of 01/31/2016; – 14,503.17 rubles. (572,000 rubles × 32%: 366 days × 29 days) – as of 02/29/2016; – 15,503.39 rubles. (RUB 572,000 × 32%: 366 days × 31 days) – as of 03/31/2016. 04/01/2016, the organization transferred a bill of exchange to its simplified supplier in payment for goods shipped to it worth 600,000 rubles. 04/01/2016, the organization will reflect in tax accounting: – income from the sale of the bill of exchange – in the amount of 605,000 rubles; – expenses from the sale of the bill of exchange – in the amount of 572,000 rubles; – non-operating expenses in the form of interest previously included in non-operating income – in the amount of 36,007.87 rubles. (RUB 6,001.31 + RUB 14,503.17 + RUB 15,503.39).
Indication of several places of payment entails the invalidity of the bill of exchange
The place of payment can be indicated by a specific locality or in the form of a specific address (clause 23 of resolution No. 33/14). This is an optional detail. If it is not specifically noted in the promissory note, then the place of payment is considered to be the place where the document was drawn up. And if it is not indicated, then the address indicated next to the name of the drawer (Article 75 of Regulation No. 104/1341). If there is no place of payment in the bill of exchange, the address indicated next to the name of the payer is recognized as such (Article 2 of Regulation No. 104/1341).
Thus, a bill is invalidated due to the lack of a place of payment only if this place is not indicated in the document and there are no addresses that can fill it. Such situations are rare.
More often, another error occurs: when the bill indicates several places of payment (that is, the holder of the bill can present it at one of the addresses specified in the document). This deficiency can no longer be corrected by referring to the place where the bill was drawn up or the address of the payer. That is, the bill is considered defective in form, and therefore invalid (clause 23 of resolution No. 33/14). But if the drawer or payer simply corrected one address originally indicated in the bill to another, then this is not considered a plurality of places of payment and a defect in the bill (decision of the Ninth Arbitration Court of Appeal dated 02/08/08 in case No. 09AP-140/2008-GK).
Defects in signatures on a bill of exchange
The drawer's signature requires special attention from a lawyer. At first glance, only one of the possible defects can be identified. Namely, that the signature is not handwritten, but a facsimile. Only a handwritten signature indicates that the bill is genuine. The court simply will not accept another document as confirmation of the rights of claim under the bill (clause 6 of resolution No. 33/14).
Meanwhile, if the signature is handwritten, it is also important to exclude hidden defects. That is, to make sure that the author of the signature had the right to sign the bill on behalf of the company issuing the bill. This can be done by a person authorized by the constituent documents to enter into transactions on behalf of the company (Article 53 of the Civil Code of the Russian Federation, clause 4 of Resolution No. 33/14). Most often, this is the sole executive body of the company (director, general manager, etc.). But to make sure of this, it is worth familiarizing yourself with the charter of the bill issuer company, the decision on the appointment of a director, and ideally, request an extract from the Unified State Register of Legal Entities to be sure that the director is active.
It is also possible for the bill of exchange to be signed by a representative under a power of attorney. In this case, in order to avoid the risk of refusal to repay the debt, it is better for the bill holder not only to look at the power of attorney, but also to keep a copy of it. The fact is that bill of exchange legislation does not require decryption of the signature. But at the same time, in the absence of a decryption, the company indicated as the drawer of the bill may refer to the fact that the bill was signed on its behalf by an unidentified person, and it itself is not obliged by it. In such a situation, a copy of the power of attorney will help prove the opposite (resolution of the Third Arbitration Court of Appeal dated December 24, 2008 No. A33 7636/2008-03AP-3293/2008).
If it is known who exactly owns the signature on the bill of exchange, but this person did not have the authority to sign it on behalf of the company, then the bill of exchange can be presented for redemption only to the direct author of the signature. In such a situation, he is obligated on the bill of exchange, as if he issued it on his own behalf (Articles 8 and 77 of Regulation No. 104/1341, paragraph 13 of Regulation No. 33/14). But it is obvious that if the bill was issued for a substantial amount, then the likelihood of actually receiving payment from an individual, even in the presence of a court decision, is very small.
In addition to checking the authority to sign a bill of exchange, it is also worth visually comparing the signature of the representative of the company-drawer of the bill with its samples on other documents (for example, on an agreement concluded with the drawer). This will help eliminate signature forgery (when someone else signed as a director of the company or as a representative under a power of attorney and it is impossible to determine who exactly). In such a situation, there is no one to demand the bill of exchange from (see, for example, the decision of the Federal Arbitration Court of the North-Western District dated December 7, 2004 in case No. F04 8731/2004 (7018 A70 11)). Of course, a lawyer cannot conduct a handwriting examination, but a visual comparison will at least help eliminate obvious forgery, when the signature on a bill of exchange is completely different from the signature of an authorized person on other documents.
You need to be careful with bills
The definition of a bill of exchange is contained in Article 815 of the Civil Code. This is a security that certifies the unconditional obligation of the drawer to repay the borrowed money within a certain period of time.
In Russia, the Federal Law of March 11, 1997 No. 48-FZ “On bills of exchange and promissory notes” is in force. In particular, it establishes that both organizations and citizens, including those who do not have the status of an individual entrepreneur, can be bound by a bill of exchange. A bill of exchange can only be drawn up on paper. There are no uncertificated bills of exchange in Russia. The law also confirms that the Regulations on bills of exchange and promissory notes apply in Russia. It was approved by resolution of the Central Executive Committee and Council of People's Commissars of the USSR dated August 7, 1937 No. 104/1341. It is this document that establishes the basic rules of bill circulation in Russia.
When working with bills of exchange, it is also useful to refer to judicial practice. For example, a number of “bill” problems are considered in the resolution of the plenum of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 No. 33/14 “On some issues in the practice of considering disputes related to the circulation of bills of exchange.”
Classification of bills
Bills of exchange can be simple or transferable. A promissory note is sometimes also called a solo bill, and a bill of exchange is sometimes called a draft. Let's figure out how these two types of securities differ. Entrepreneurs are often mistaken and believe that a bill of exchange can be transferred to other persons by endorsement, but a promissory note cannot. In fact, the difference between them lies elsewhere. When dealing with a bill of exchange, the drawer and the payer are different persons. That is, the drawer does not pay the bill himself, but invites someone else to do it. In a promissory note, the drawer and the payer are one person. Therefore, a bill of exchange contains an offer to pay, while a promissory note contains a promise to remit money.
In this case, a promissory note can be transferred by endorsement in the same way as a transferable one.
Let us demonstrate the essence of a bill of exchange using an example.
Example
The Payer organization owes 100 rubles. for the goods supplied. In turn, you have a creditor, the amount of debt to whom is also 100 rubles. The organization “Bill-Drawer” decides to issue a bill of exchange in payment of its debt, which contains an offer to transfer 100 rubles on it. When issuing a bill of exchange, the organization “Drawer of the Bill” simultaneously draws up and transmits a notification letter, or advice note. In it, she asks to accept and pay the bill, with the subsequent offset of this amount against the debt under the supply agreement.
Note that currently Russian companies very rarely use bills of exchange. The bulk of these securities are promissory notes.
Bills of exchange are also divided into commodity and financial. Moreover, the legislation does not provide for such a classification. A commodity bill is a paper that is issued as payment for goods, work or services.
A financial bill is a paper that is issued without regard to any goods, works or services. From the point of view of bill legislation, commodity and financial bills are absolutely equivalent. They are drawn up, issued, endorsed and paid in the same manner. Moreover, a bill that was originally financial can turn into a commodity bill.
Don't skimp on the form
The first question that arises when drawing up a bill of exchange: is it necessary to use special forms? The answer is no, there are no such requirements. A bill of exchange that is drawn up on a plain piece of paper and contains all the necessary details will be valid.
The first bill holder may not hold the bill himself, but endorse it to third companies. Therefore, if an enterprise expects that its bill will be circulated, it is undesirable to draw it up on a simple sheet. After all, this paper is not protected by anything and does not provide the holder with any guarantees. So, in order for the bill to circulate well, it is better for the company to draw it up on a special form.
What makes a bill a security?
The bill of exchange must contain certain details. If the document lacks at least one of them, such a document loses the force of a bill. However, in this case, the paper executed with violations does not become insignificant. The document simply turns into an IOU.
It should be noted that the exception is such details as the due date, place of payment and drawing up of the bill. The regulations on bills of exchange and promissory notes provide for the following:
- a bill for which the due date is not specified is considered to be payable upon sight;
- unless there is a special indication, the place indicated next to the name of the payer is considered the place of payment and at the same time the place of residence of the payer;
- If the bill of exchange does not indicate the place of its preparation, then it is considered to be signed at the address indicated next to the name of the drawer.
Name of the bill
Oddly enough, it is not a required requisite. Any bill of exchange must contain a so-called bill of exchange mark - the name “bill of exchange”. It must be included in the text of the document itself. The label should be written in the language in which the document is written. Thus, the absence of the name “bill” in a document does not mean that it is not a bill.
Date and place of drafting the bill
Date is a mandatory detail of the bill. Location may not be specified. In this case, the place of drawing up the bill is considered to be the address indicated next to the name of the drawer.
Name of the drawer
In principle, the name of the drawer is not included in the required details. However, a mandatory attribute of a document is its signature. This means that it is necessary to decipher who exactly is signing. Bill of exchange legislation does not provide any guidance regarding the degree of individualization of the drawer. Whether it is enough to indicate only the name, or whether you also need a OGRN, address, or any other details is unknown. From a formal point of view, one name is enough. However, in this case, it will be problematic for the holder of the bill to prove that Atlant LLC, indicated in the bill as the payer, and Atlant LLC, to which demands for payment are made, are one and the same enterprise.
Therefore, usually the legal address of the payer is indicated in parentheses next to the name of the payer.
Place of payment
It is advisable to indicate this detail as precisely as possible. Otherwise, it will be difficult to present a document for payment.
A simple and unconditional promise to pay a certain amount
This is a mandatory bill of exchange. Please note: the promise to pay for the document must be unconditional. This is an integral feature of a bill of exchange obligation. The drawer cannot indicate in the bill that he will pay it, for example, subject to the delivery of a certain quantity of goods. Otherwise, the document loses its bill of exchange force.
The amount must be monetary. Payment cannot be made in goods, gold bars, etc.
The amount of the bill can be indicated both in words and in numbers. If one option differs from the other, then the copy will take precedence. If in a bill of exchange the amount is indicated several times (in words or in numbers), then in the event of a discrepancy between these designations, the bill of exchange is valid only for the smaller amount.
The value of the bill can be expressed both in rubles and in other currencies. If the amount in a document is indicated in a foreign currency, this does not mean that the bill must be paid in it. Here it is necessary to understand the difference between the currency of debt and payment. The first reflects the denomination of the bill, and the second – the currency in which payments will be made.
Name of the first bill holder
The bill must indicate the name of the person to whom or by whose order the bill should be paid. At the same time, it must be specified. So, for example, you cannot indicate “bearer” in this column.
Payment due date
A bill of exchange can be issued for a period of:
- upon presentation – must be paid within a year from the date of its preparation (possible wording options: “on presentation, but not earlier”, “on presentation, but not later”, “on presentation, but not earlier and no later”);
- within a certain period from presentation - the document must be paid within a year from the date of its issue. In this case, the drawer makes a date stamp on the bill. It is from this point that the payment deadline begins to be calculated. If the drawer does not want to put such a mark in the document, then his refusal is certified by a protest. Then the payment period begins from the date of the protest;
- within a certain period of time from drawing up;
- for a specific day.
The bill must indicate only one of the payment terms options. If the document contains two or more options, it is deprived of bill validity.
If the payment period is not specified in the bill, then it is considered issued on sight.
Signature of the drawer
This is a required detail of the bill. The signature cannot be made using any mechanical or other technical means of reproduction (for example, facsimiles). The bill of exchange can only be signed with one’s own hand. A facsimile signature on a document will be regarded by the court as the absence of a mandatory bill of exchange. If the drawer is a company, then the document is usually signed by its director. However, this can also be done by another person on the basis of a power of attorney (representative). For a long time it was believed that a bill of exchange was not valid without the signature of the company's chief accountant. This opinion was based on the provisions of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”. In accordance with it, all financial obligations of the organization must be sealed with the signature of the chief accountant. However, judicial practice refutes this. In paragraph 4 of the resolution of the plenum of the Supreme Court of the Russian Federation No. 33 and the plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated December 4, 2000 No. 33/14 it is stated that the requirement of Article 7 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting » does not apply to bill obligations. Therefore, bills issued on behalf of the company are valid even without the signature of the chief accountant.
Interest clause
It is permissible only when issuing indefinite-term bills. That is, we are talking about documents that are subject to payment “on presentation” or “within such and such a time from presentation”. The interest rate must be stated on the promissory note. If the document does not indicate a specific date, then interest on it should be accrued from the moment the bill is drawn up (Article 5 of the Regulations).
How to issue your own bill
It is not uncommon for companies to issue a promissory note under a purchase and sale agreement. Of course this is wrong. After all, a bill of exchange is not for the drawer a property that can be sold. Its value is not the face value of the bill, but the price of a piece of paper and ink used to draw up the document. Therefore, it would be correct to draw up an agreement for the issuance of a bill. This type of agreement is not provided for by the Civil Code. However, Article 421 of the Civil Code allows merchants to enter into any contracts. In the agreement for the issuance of a bill of exchange, it is necessary to indicate the details of the document (date and number), its denomination, payment period and interest (if any). It should also be stated that the bill is transferred under the act of acceptance and transfer.
A bill of exchange can also be issued under a loan agreement. But only in the case when the money for the bill is transferred before the moment of its issuance or simultaneously with it.
Since the loan agreement will come into force only from the moment the money is transferred (Article 807 of the Civil Code of the Russian Federation). And the company may find that it has already issued the bill, but the obligation to pay it has not yet entered into force. Obviously, this situation is not beneficial to the drawer.
Another common mistake made by entrepreneurs is when the drawer, when issuing a document, puts an endorsement on it to the holder of the bill. This is not worth doing. The first endorsement appears on a bill of exchange at the moment the holder transfers the document to a third party company.
Types of endorsements
Blank endorsement is an endorsement that does not indicate in whose favor it was made. Most often, blank endorsements consist of only one signature of the transferor. To receive or transfer such a bill, it is not necessary to write anything on it. It is enough to simply hand it over to the new owner. Anyone who puts his signature on the bill as an endorser will automatically be included in the circle of solidary debtors under this document. That is, the holder of the bill can go to collect the bill amount not from the drawer, but from the endorser. In this case, the latter will be obliged to pay the bill amount. The only way to avoid this is to put a non-negotiable clause in the endorsement (for example, “pay so-and-so without recourse to us”). However, it is unlikely that the buyer of the bill will be happy with it. After all, it means that the endorser is not confident in the solvency of the drawer and is trying to protect himself from possible claims.
The next type of endorsement is to the bearer. That is, the bearer of this bill must be paid. Such an endorsement has the force of a blank endorsement.
Personal endorsement can be of two types:
- “pay so-and-so or his order”;
- “pay so-and-so, but not to his order.”
In the second case, the bill can be transferred in a general civil manner, that is, under an agreement of assignment of rights (cession).
Let's consider how assignment of rights differs from endorsement. First of all, it should be noted that the assignor is responsible only for the validity of the bill, but not for its payment. So, if the debtor (drawer) for some reason does not pay the document, then no demands can be made against the assignor. And the company that transfers the bill by endorsement is responsible for its validity and payment. The exception is when the document contains a non-negotiable clause.
A guarantee endorsement indicates that the holder of the bill is not its full owner. He acts as an attorney who has been given instructions to receive money under the document.
A collateral endorsement may be affixed when a bill of exchange is pledged. Its holder has all the rights under the bill. However, the endorsement affixed by him will have the force of a guarantee.
Payment issues
When presenting a bill of exchange for payment, the company may encounter some difficulties. There are several questions that most often concern businessmen:
1. Is it necessary to give the original bill of exchange to the debtor when presenting it for payment?
The provision on bills of exchange and promissory notes establishes that the payer has the right to demand that the bill be transferred to him simultaneously with or after payment. If the holder of the bill delivers the bill before payment, he will lose all rights under it and will be able to rely only on the honesty of the debtor.
2. What should the holder of the bill do if the drawer does not pay?
Refusal to pay should be certified by a special act - a protest of non-payment, which is drawn up by a notary. However, the holder of the bill has the right to demand payment through the court, even if a protest for non-payment has not been filed. This is confirmed by judicial practice, in particular the resolution of the Supreme Arbitration Court of the Russian Federation of July 13, 2004 No. 3369/04.
3. What happens if the deadline for presenting a bill for payment is missed?
In this case, the holder of the bill does not lose the right to demand payment of the bill. It lasts for three years. However, the holder of the bill may require payment of the document only from the acceptor of the bill of exchange or from the drawer of the promissory note. The “latecomer” has no right to make any claims against endorsers, avalists and others obligated under the bill.
Antonina Marsova, lawyer at LLC Audit Service STEK, Ph.D.
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