KATEDRA OBCHODNÍHO PRÁVA
Josef Kotásek
josef.kotasek@law.muni.cz

Legislativa
Právní úprava směnek a šeků v anglo-americkém prostředí
• VB
• BEA, 1882
•
• USA:
• Uniform Negotiable Instruments Law (1897)
• Aktuálně: Art 3 UCC (od 1952)
• Relativní sjednocení?
•Common Law, Equity
•Permanent Editorial Board
•National Conference of Commissioners on Uniform
State Laws, American Law Institut
http://www.law.cornell.edu/ucc/ucc.table.html

Typy CP
Typy cenných papírů
"Instrument" means a negotiable instrument:
Check
Cashier's check
Teller's check.
Traveler's check
Note
Bill of exchange
Vylučeny Securities podle čl. 8 a speciální papíry emitované bankami dle čl. 4

Přehled druhů směnek
Bill of Exchange and Note
Order – Drawer, Drawee (Acceptor), Payee
•
Promise – Maker, Payee

Základní klasifikace
• negotiable v. non-negotiable v. not-negotiable
•
• Navazující koncept HDC – Holder in due course
•
• § 3-104
•
•
•
•

Podpis
Writing
"Writing" includes printing, typewriting, or any other intentional reduction to tangible form.
"Written" has a corresponding meaning.
"Signed" includes using any symbol executed or adopted with present intention to adopt or accept a
writing.
Zfalšované, padělené a obdobné podpisy:
"Unauthorized signature" means a signature made without actual, implied, or apparent authority. The
term includes a forgery.
§ 3-403.  UNAUTHORIZED SIGNATURE.
(a)  Unless otherwise provided in this Article or Article 4, an unauthorized signature is
ineffective except as the signature of the unauthorized signer in favor of a person who in good
faith pays the instrument or takes it for value.  An unauthorized signature may be ratified for all
purposes of this Article.

Bezpodmínečnost slibu či příkazu
• a promise or order is unconditional unless it states (i) an express condition to payment, (ii)
that the promise or order is subject to or governed by another record, or (iii) that rights or
obligations with respect to the promise or order are stated in another record.
•
• A reference to another record does not of itself make the promise or order conditional.
•
• další výjimky  § 3-106 (b).  UNCONDITIONAL PROMISE OR ORDER
Text bez podmínek

Povoleno splátkování
Povoleno i sofistikovanější určení směnečné sumy
„the computation must be one which can be made from the instrument itself without reference to any
outside source“
§ 3-112.  INTEREST.
(a)  Unless otherwise provided in the instrument, (i) an instrument is not payable with interest,
and (ii) interest on an interest-bearing instrument is payable from the date of the instrument.
(b)  Interest may be stated in an instrument as a fixed or variable amount of money or it may be
expressed as a fixed or variable rate or rates.  The amount or rate of interest may be stated or
described in the instrument in any manner and may require reference to information not contained in
the instrument.  If an instrument provides for interest, but the amount of interest payable cannot
be ascertained from the description, interest is payable at the judgment rate in effect at the
place of payment of the instrument and at the time interest first accrues.
Suma

§ 3-107.  INSTRUMENT PAYABLE IN FOREIGN MONEY.
Unless the instrument otherwise provides, an instrument that states the amount payable in foreign
money may be paid in the foreign money or in an equivalent amount in dollars calculated by using
the current bank-offered spot rate at the place of payment for the purchase of dollars on the day
on which the instrument is paid.
Cizí měny

§ 3-108.  PAYABLE ON DEMAND OR AT DEFINITE TIME.
(a)  A promise or order is "payable on demand" if it (i) states that it is payable on demand or at
sight, or otherwise indicates that it is payable at the will of the holder, or (ii) does not state
any time of payment.
(b)  A promise or order is "payable at a definite time" if it is payable on elapse of a definite
period of time after sight or acceptance or at a fixed date or dates or at a time or times readily
ascertainable at the time the promise or order is issued
Splatnost

§ 3-109.  PAYABLE TO BEARER OR TO ORDER
(a)  A promise or order is payable to bearer if it:
(1) states that it is payable to bearer or to the order of bearer or otherwise indicates that the
person in possession of the promise or order is entitled to payment;
(2) does not state a payee; or
(3) states that it is payable to or to the order of cash or otherwise indicates that it is not
payable to an identified person.
(b)  A promise or order that is not payable to bearer is payable to order if it is payable (i) to
the order of an identified person or (ii) to an identified person or order.  A promise or order
that is payable to order is payable to the identified person.
Jazyk směnky nerozhodný…

Forma směnek -  Negotiability

§ 3-111.  PLACE OF PAYMENT.
Except as otherwise provided for items in Article 4, an instrument is payable at the place of
payment stated in the instrument.  If no place of payment is stated, an instrument is payable at
the address of the drawee or maker stated in the instrument.  If no address is stated, the place of
payment is the place of business of the drawee or maker.  If a drawee or maker has more than one
place of business, the place of payment is any place of business of the drawee or maker chosen by
the person entitled to enforce the instrument.  If the drawee or maker has no place of business,
the place of payment is the residence of the drawee or maker.

Platební místo je fakultativní

§ 3-113.  DATE OF INSTRUMENT
(a)  An instrument may be antedated or postdated.  The date stated determines the time of payment
if the instrument is payable at a fixed period after date.  Except as provided in Section 4-401(c),
an instrument payable on demand is not payable before the date of the instrument.
(b)  If an instrument is undated, its date is the date of its issue or, in the case of an unissued
instrument, the date it first comes into possession of a holder.

Datum vystavení je fakultativní

§ 3-114.  CONTRADICTORY TERMS OF INSTRUMENT
If an instrument contains contradictory terms, typewritten terms prevail over printed terms,
handwritten terms prevail over both, and words prevail over numbers.
Hierarchie zápisů podle druhu použitého psacího nástroje

„Holder in due course" means the holder of an instrument if:
(1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of
forgery or alteration or is not otherwise so irregular or incomplete as to call into question its
authenticity; and
(2) the holder took the instrument
(i)for value,
(ii)in good faith,
(iii)without notice that the instrument is overdue or has been dishonored or that there is an
uncured default with respect to payment of another instrument issued as part of the same series,
(iv)without notice that the instrument contains an unauthorized signature or has been altered,
(v)without notice of any claim to the instrument described in Section 3-306 (právo na vydání
listiny vlastníkem), and
(vi)without notice that any party has a defense or claim in recoupment described in Section
3-305(a).
HOLDER IN DUE COURSE

"notice" of a fact if the person: (1) has actual knowledge of it; (2) has received a notice or
notification of it; or (3) from all the facts and circumstances known to the person at the time in
question, has reason to know that it exists.
(b) "Knowledge" means actual knowledge.
SHELTER DOCTRINE
Shelter doctrine is a principle of commercial law that any person or any later transferee to whom a
holder in due course transfers commercial paper will succeed to the rights of the holder in due
course. Therefore, generally the transferees of holders in due course are not subject to defenses
against the payment of an instrument. The principle is named ‘shelter doctrine’ as the transferees
‘take shelter’ in the rights of the holder in due course. This doctrine ensures the free
transferability of commercial paper.
NOTICE

"Indorser" means a person who makes an indorsement.
§ 3-205.  SPECIAL INDORSEMENT; BLANK INDORSEMENT; ANOMALOUS INDORSEMENT.
(a)  If an indorsement is made by the holder of an instrument, whether payable to an identified
person or payable to bearer, and the indorsement identifies a person to whom it makes the
instrument payable, it is a "special indorsement."  When specially indorsed, an instrument becomes
payable to the identified person and may be negotiated only by the indorsement of that person.
(b)  If an indorsement is made by the holder of an instrument and it is not a special indorsement,
it is a "blank indorsement."  When indorsed in blank, an instrument becomes payable to bearer and
may be negotiated by transfer of possession alone until specially indorsed.
(c)  The holder may convert a blank indorsement that consists only of a signature into a special
indorsement by writing, above the signature of the indorser, words identifying the person to whom
the instrument is made payable.
(d)  "Anomalous indorsement" means an indorsement made by a person who is not the holder of the
instrument.  An anomalous indorsement does not affect the manner in which the instrument may be
negotiated.

Indorsement

§ 3-206.  RESTRICTIVE INDORSEMENT
(a)  An indorsement limiting payment to a particular person or otherwise prohibiting further
transfer or negotiation of the instrument is not effective to prevent further transfer or
negotiation of the instrument.

Druhy rubopisů