Features of settlements using a bill of exchange “at sight”

Bill of exchange

- a security (Article 815 of the Civil Code of the Russian Federation), which certifies the obligation of the drawer or another specified payer to pay, after a certain period of time, the amount of money indicated in it to the owner. It can be used as a means of payment (to pay for goods to the seller), as collateral for a loan, as a source of income (purchase from a bank with subsequent receipt of interest).

Thus, there are two or three parties involved in the transaction. The drawer is the party who issues the bill. Recipient - the party to whom the payment is sent (in a simple case - the creditor). The drawee is the party who pays the amount for the drawer.

The promissory note does not indicate who the recipient of the money is. This is a bearer security. The transfer order is issued by the drawer (for example, the buyer of the goods) in the name of the remittor (the seller of the goods and the recipient of the funds). Such a document contains a written order to the bank (drawee) to pay the remitter the amount. When transferring, a transfer inscription is placed on the back - an endorsement.
Acceptance
is a written consent to fulfill obligations.
The drawee confirms his consent with an inscription on the front side. Accounting
is the release of money to the lender.

Peculiarities

• the unconditionality
  of a monetary obligation implies that no conditions can cancel the obligation to pay a certain amount to the creditor;
• independence
  means that the bill is not legally tied to a specific agreement, it arises as a result of a certain transaction, but is separated from it and exists as a separate document;
• a strictly defined form of completion
  must contain all the necessary details; the absence of at least one of them makes it void.

Required details

• name
  , label. may be simple or translated;
• obligation to pay the amount.
  Under a promissory note, the debtor “obliges” to pay; under a transferable bill, he “demands” from a third party;
• amount of the amount
  (in numbers and words). The bill can be issued with interest (this is a kind of deferred payment for which they may be required to pay). They can either be included in the amount or indicated separately;
• payment term.
  There are several options: upon presentation, within some time from presentation, within a certain time after drawing up, on a certain day. If the payment period is not specified, this means that it is payable upon sight within a year from the date of issuance of the bill;
• place of payment
  (by default - payer's location);
• name and address of the payee (and payer).
  In a simple case, information about the payer is not indicated, since he is the drawer. In the case of a transfer, these can be different persons, so the name and address of the payer must be indicated;
• place and date of compilation;
• signature of the drawer
  (in the lower right corner, handwritten). If the debtor is a legal entity, then the signatures are affixed by the director and the chief accountant, and next to it is the seal of the organization.

There may also be an aval

- surety, guarantee of payment on a bill of exchange of a third party. May be required when solvency is in doubt. On the reverse side there may be an endorsement - an endorsement that records the fact that the rights of claim under the paper have transferred to another person.

Protest of bills

Protest of a bill, like all actions with bills, is strictly formalized. The essence of this procedure is that this is an officially certified demand for payment or acceptance and its non-receipt. If the holder of the bill does not properly protest the bill for non-acceptance or non-payment, the bill will lose its validity.

If the bill loses this quality, the right to claim the debt will already be conditional in nature, that is, the bill will have the status of just a promissory note.

For example , an enterprise improperly protested a bill of exchange for non-payment, that is, it violated one or more conditions of the protest. In this case, the enterprise, of course, has the right to apply to the arbitration court with a statement of claim against the debtor, but the court’s decision will be made based on the terms of the main transaction, and not at all on the bill of exchange law.

This means that if the holder of the bill has not fully or partially fulfilled his obligations under the main transaction, then it is possible that the claim will not be satisfied and the debtor will not pay the bill. If the bill of exchange is properly protested, then the debtor, in accordance with bill of exchange legislation, is obliged to make payment regardless of the presence of violations of the terms of the main transaction.

Bill protest procedure

1. The holder of the bill or his authorized person must present the unpaid bill to the notary's office at the location of the payer or, if these are domiciled bills, at the location of the domicile, and to make a protest against bills of exchange for non-acceptance - at the location of the debtor (drawee). The bill must be presented to the notary's office to file a protest for non-payment on the next day after the expiration of the payment date on the bill, but no later than 12 o'clock on the day following this deadline. To make a protest for non-acceptance, the bill must be presented to the notary's office within the period established for presenting the bill for acceptance, and if the bill was presented for acceptance on the last day of the period - no later than 12 o'clock on the day following this deadline.
2. On the day of acceptance of the bill of exchange, the notary's office presents a demand to the debtor or domicile for payment or acceptance of the bill of exchange.
3. If payment follows after this, the notary's office, without making a protest, returns the bill to the debtor or domicile with an inscription indicating receipt of payment. If the debtor has made a note of acceptance on the bill of exchange, the bill is returned to the holder without protest.
4. If the payer or domicile refuses the request to accept or pay a bill of exchange, the notary draws up an act of protest for non-acceptance or non-payment, at the same time he makes a corresponding entry in the register, as well as a note of non-payment or non-acceptance on the bill itself. If it is impossible to establish the location of the debtor, the protest of the bill is made without presenting a requirement for payment or acceptance.

Consequences if protest is carried out properly:

• Court authorities have the right to issue court decisions on claims based on protested bills of exchange.
• Responsibility arises: for a promissory note - the signers, and for a transferable bill - the signers and the drawer. All these persons are jointly and severally liable to the bill holder. The latter has the right to bring a claim against all persons obligated under the bill or against one of them, regardless of the order of signatures of these persons on the bills.
• The holder of the bill has the right to demand from the persons obligated under the bill a larger amount than indicated in the bill, due to the costs incurred caused by the protest and non-receipt of payment on it.

In case of expiration of the time limits established for making a protest of non-acceptance or non-payment, the holder of the bill loses his rights against the endorsers, the drawer and other obligated persons, with the exception of the acceptor.

If a protest is made in a timely manner, the holder of the bill has the right to recover the amount due to him in court within a certain period, called the bill of limitations.

Since the responsibility of each of the participants in the bill circulation has different levels, the bill of limitations periods for each of them are also different. Thus, for the holder of a bill of exchange to bring a claim against the acceptor of a bill of exchange, a three-year period is established, and for the drawer of a promissory note - one year from the date of the protest made within the established period, or from the date of payment, in the case of a clause “on turnover without costs”. The latter also applies to endorsers. The limitation period for claims of endorsers against each other and against the drawer is 6 months from the day on which the endorser paid the bill, or from the date of filing a claim against him.

Kinds

Depending on the functions performed and the conditions under which debt arises, they are classified according to different characteristics and types.

Table 1. “Classification by characteristics and types”

Data: “Accounting for securities and financial investments”, Nateprova T.Ya.

Promissory note

Bill of exchange

is a debt monetary obligation issued by the debtor to the creditor. This document, designed to document the borrower's debt to the lender, is completed in writing in accordance with legal requirements. A bill of exchange is a security and its absence of mandatory details (name, obligation to pay, amount, payment term, details of the payer and recipient of the money, signature of the drawer, etc.) makes it invalid.

Depending on how many parties are involved in the transaction, a distinction is made between simple and transferable. Solo bill (simple)

implies that there are two parties to the transaction: the debtor and the holder (creditor). That is, the payer and the debtor are one person. Essentially, it's an IOU. A promissory note contains a personal obligation of the debtor to pay the debt, while a transferable one contains an instruction to a third party to pay.

Promissory note circulation scheme

Circulation scheme

• The buyer of goods (recipient of services) issues a bill of exchange to the seller as confirmation of his obligations to pay for the goods shipped (services provided);
• The seller (creditor) ships the goods or provides services to the customer;
• The seller presents the bill for payment on time;
• The buyer pays for the goods delivered (services performed) - cancels the bill.

A bill of exchange (transferable)

involves the participation of three parties: creditor, debtor. The transfer order is issued by the drawer (for example, the buyer of the goods) in the name of the remittor (the seller of the goods and the recipient of the funds). Such a bill contains a written order to the bank (drawee) to pay the remitter the amount.

Example. Comparison of promissory note and bill of exchange.

A fruit wholesaler purchases a batch of apples worth 10 thousand rubles from an agricultural producer. But he cannot pay immediately, since the funds will be received only after the sale of a batch of goods to retail stores. The wholesaler can provide the agricultural producer with a promissory note ,

in which he undertakes to pay for the goods (with interest for deferment) by the specified date.
Also, a wholesale seller can use a bill of exchange ,
in which he obliges his debtor to pay. The retail store owes the wholesaler 20 thousand rubles for the previous batch of fruit and now the latter can “redirect” his debt (10 thousand rubles + interest) to him.

Required details

• name
  (simple). Located at the top;
• place and date of compilation;
• amount of the amount
  (in numbers and/or in words). The bill may be drawn with interest, which may either be included in the amount or specified separately;
• personal obligation of the debtor to pay the amount
  by the specified date;
• name and address of the payee;
• payment term.
  There are several options: upon presentation, within some time from presentation, within a certain time after drawing up, on a certain day. If the payment term is not specified, this means that it is payable upon presentation within 1 year from the date of issue;
• place of payment
  (by default - payer's location);
• signature of the drawer
  (in the lower corner, handwritten). If the debtor is a legal entity, then the signatures are affixed by the director and the chief accountant, and next to it is the seal of the organization.

There may also be an aval

— guarantee, guarantee of payment of a third party. May be required when solvency is in doubt.

Sample

Sample

Payment on a bill

The bill payment procedure is strictly standardized and consists of the following rules.

1. The bill of exchange is presented for payment at the location of the payer, unless a different location is specified in the bill of exchange.
2. The payer must make payment immediately upon presentation of the bill, if presentation of the latter is timely. Deferment of payment on a bill of exchange is permitted only in the event of force majeure circumstances.
3. When calculating the maturity of a bill of exchange, the day on which it is issued should not be taken into account. If the repayment date falls on a non-business day, the bill must be repaid on the next business day.
4. Presentation of a bill of exchange for payment before its maturity does not oblige the debtor to pay on it, just as the debtor’s demand to the holder of the bill to accept payment before the maturity of the bill cannot be satisfied.
5. The debtor can pay only part of the amount on the day of repayment of the bill, and the holder of the bill does not have the right not to accept payment. In this case, a note is made on the front side of the bill indicating the repayment of part of the bill amount. The holder of the bill has the right to protest the unpaid amount and bring a claim against any of all persons obligated under the bill in the amount of the unpaid amount.

Deferment of payment on a bill of exchange is impossible, but in practice circumstances arise when it is necessary to extend the payment period.

This can be done by writing on the front side of the bill the clause “payment period extended until...” or another equivalent in meaning. At the same time, in order for the new inscription to be valid, the signatures of all persons obligated on the bill are required. If any of these persons does not agree with the new payment period, this person ceases to be responsible after the expiration of the old payment period.

There is another way to defer payment on a bill: by issuing a new bill with a payment date extended by the period of the deferred payment. Usually the first bill is returned to the payer after he accepts the new bill.

A bill of exchange is not accepted for payment or acceptance under the following conditions:

• It is impossible to find the payer at the specified address
• death of the payer
• payer's insolvency
• the bill states “not accepted” or “not accepted”
• the acceptance note will be crossed out

Bill at sight

A promissory note is a security issued by a debtor and confirming that he undertakes an obligation to pay an amount (repay) within a certain period.

Depending on the period

through which this payment must be made are distinguished:

• on a certain day.
  The front side must indicate: day-month-year when payment will be made;
• after a certain period
  (days, months) after compilation. The day of issue is not taken into account;
• upon presentation.
  The bill must be presented for payment within 1 year from the date following the day of its preparation. And it will need to be repaid any day the creditor demands.

Clarifications may be made, such as: “not earlier than a certain date”, “not earlier than a certain date and not later than a certain date”.

Example 1. (Types)

On May 31, 2014, the organization paid for the supply of goods with a bill of exchange at sight in the amount of 100 thousand rubles. The interest rate is 10% per annum. The deadline for presentation for payment is June 1, 2015. The bill was presented for payment and repaid on September 1, 2014 (92 days later). Consequently, the amount was 100 thousand rubles. + (100 thousand rubles*0.10/365*92) = 100 thousand rubles. + 2520.55 = 102,520.55 rub.

Was issued on May 31, 2014 with the condition of payment on a certain day.

It is due on August 1, 2014 (in 61 days). Consequently, the amount was 100 thousand rubles. + (100 thousand rubles*0.10/365*61) = 100 thousand rubles. + 1671.23 = 101,671.23 rub.

It was issued on May 31, 2014 with the condition of payment after a certain period.

It is due in 6 months (183 days), on December 1, 2014. Consequently, the amount was 100 thousand rubles. + (100 thousand rubles * 0.10/365 * 183) = 100 thousand rubles. + 5013.7 = 105,013.7 rub.

Presentation for payment

The maturity date upon sight is presented to the debtor for payment at any time when the creditor decides, but within 1 year from the date of drawing up (or the next one). A more precise time period for repayment may be specified. To do this, make a note “not earlier than a certain date”, “not earlier than a certain date and not later than a certain date”.

There are specialized institutions - a bank, a depositary, a notary - which can be entrusted with receiving payment. The paper will be there from the moment it is presented for payment until the creditor receives the money or refuses to repay. After this, the bill will be issued either to the debtor (repayment of the amount) or to the holder (refusal to repay the amount).

Presentation for payment occurs at the place specified in the document. This may be a locality or a specific address. If the place of presentation of payment is different from that indicated, the bill will be considered improperly presented. And collecting the amount (if the debtor has difficulties with payment) in this case will be problematic.

Problems may also arise if all the necessary details are not specified. Depending on the type of bill of exchange (simple or transferable), the requirements may vary, but in general, the document must contain the following details:

• name
  (simple, when the debtor himself pays, or transferable, when a third party pays);
• obligation to pay the amount
  (the debtor “obliges” to pay; according to a transfer, he “demands” from a third party);
• amount of the amount
  (in numbers and/or in words). Interest may either be included in the amount or stated separately;
• payment term
  (in our case - “on sight”, but within 1 year from the date of issue);
• place of payment
  (by default - payer's location);
• name and address of the payee (and payer).
  In a simple case, information about the payer is not indicated, since he is the drawer. In the case of a transfer, these can be different persons, so the name and address of the payer must be indicated;
• place and date of compilation;
• signature of the debtor
  (in the lower right corner, handwritten). If the debtor is a legal entity, then the signatures are affixed by the director and the chief accountant, and next to it is the seal of the organization.

Refusal to repay upon presentation

If on the day the bill is presented for payment, the creditor does not receive evidence of payment, he needs to protest with a notary in the next two business days. Refusal of acceptance or payment must be certified by an act drawn up in public order - as a protest of non-acceptance or non-payment. After this, the bearer is issued a protest act, and a special mark is made on the document.

If payment is refused when payment becomes due, the creditor has the right to bring an action against the debtor or the indorsers. During its validity period it can change several bill holders. Often it acts as a means of payment for goods, work, and services. This is done with the help of an endorsement - an endorsement. The person carrying out the transfer (endorser) on the reverse side of the document in the line “Pay to the order” indicates the new owner of the paper, below - his name and signature. And if the “No recourse to me” clause is not specified, the endorser will be jointly and severally liable with all previous owners to the creditor.

PRESENTATION OF A BILL FOR PAYMENT

NON-PAYMENT (NON-ACCEPTANCE) AND ITS LEGAL CONSEQUENCES V.N. URUKOV Urukov Vladislav Nikolaevich Doctor of Law, Associate Professor of the Department of Civil Law Disciplines, Faculty of Law, Chuvash State University. Specialist in the field of bill of exchange and business law. Born on November 29, 1959 in the Chuvash Autonomous Soviet Socialist Republic. He began his career with military service in the Soviet Army, in 1981 he graduated from the Engels Higher Anti-Aircraft Missile Command School; in 1984 - 1994 served in the military counterintelligence agencies of the KGB, MB. In 1994 he graduated from the Moscow State Law Academy. From 1994 to the present he has been teaching at the Chuvash State University. Author of a number of publications, including textbooks “Trade (commercial) law”, 1997; "Business Law", 1997; "Bill Law", 1998; “Legal basis of insolvency (bankruptcy)”, 1999; “Subjects of business law”, 2000; as well as the monograph “Russian bill of exchange legislation and the practice of its application”, 2000. The bill of exchange law provides for the following types of presentation of a bill of exchange: presentation for payment; presentation for acceptance; presentation for dating; presentation to make a protest. Presentation of a bill of exchange for payment In practice, the most numerous group consists of disputes related to the presentation of a bill of exchange for payment (acceptance). The process of presentment for payment is mandatory for making a protest of non-payment, since presentation must precede the protest of the bill. By virtue of Art. 44 of the Regulations on bills of exchange and promissory notes, a protest for non-payment is made on one of the two working days following the day on which the bill of exchange is due for payment. Therefore, there is a presumption that before the protest is made, the bill is presented for payment. From the moment the bill is presented for payment, the amount of interest and penalties provided for in Art. 48 Regulations on bills of exchange and promissory notes. If the bill is not presented on time for payment, then the holder of the bill does not have the right to demand interest and penalties for the period of untimely presentation, since there is a delay of the bill creditor (the holder of the bill) on the basis of Art. 406 of the Civil Code of the Russian Federation. The basis for the emergence of a bill of exchange obligation is a set of legal facts or legal composition, which includes an agreement between the participants in the bill of exchange relationship and a number of unilateral transactions of the subjects of the bill of exchange legal relationship. Initially, despite the fact that the bill is in circulation, the rights and obligations of the subjects of the bill of exchange are, as it were, in a “sleeping” state, and it is believed that they “awaken” from a certain moment. Such a moment is the presentation of a bill. Until the bill is presented for payment, the holder of the bill (promissory note) has no obligation to make payment, and there are also no obligations for other participants in the bill of exchange (endorsers, avalists, intermediaries, drawer (bill of exchange)), since the rights and obligations of the latter under the bill arise from the moment the bill is presented for payment (acceptance). So, from this moment the drawer (of a promissory note) is obliged to make payment on the bill. From the moment the bill of exchange is presented for acceptance and acceptance is not received, similar legal consequences arise for the drawer of the bill of exchange (Article 43 of the Bill of Exchange Regulations). If there is no presentation of the bill due to various factors (the bill is lost, destroyed, the holder of the bill has decided to forgive the debt to the bill debtor, renunciation of his rights under the bill, etc.), then the bill obligation itself (the whole or its components) is terminated. Thus, a bill of exchange obligation has two states: “static”, when the bill of exchange obligation seems to exist conditionally, since in fact its participants bear rights and obligations, but they are not obliged to perform any legally significant actions, and “dynamic”, starting from the moment presentation of a bill of exchange for payment (acceptance) and generating corresponding subjective rights and obligations for participants in bill of exchange relations. One of the most relevant issues that arise when applying paragraph 1 of Art. 43 of the Regulations on bills of exchange and promissory notes, the question is about the possibility of bringing a claim upon the maturity date if payment was not made, but the bill was not presented for payment. This problem is not sufficiently covered in the scientific literature, although it is one of the most pressing, and judicial practice, especially locally, is contradictory. According to Art. 38 of the Regulations on Bills of Exchange and Promissory Notes, the holder of a bill of exchange for a period of a certain day or within such and such a time from drawing up or from presentation must present the bill of exchange for payment either on the day on which it must be paid or on one of the next two working days. It appears that the holder of the bill has the right to bring a claim against the drawer (in a promissory note) and the acceptor in any case upon the maturity date if payment has not been made, regardless of whether the bill is presented for payment (acceptance). Indeed, the rules of Art. 38 The provisions on the bill of exchange establish that the holder of the bill of exchange must present the bill of exchange for payment within the established time frame. But the law does not determine what legal consequences occur in the event of failure to present a bill of exchange for payment. Moreover, in accordance with Art. 42 of the Regulations in case of failure to present a bill of exchange for payment within the period specified in Art. 38, every debtor has the right to deposit the amount of the instrument with the competent authority at the expense, risk and peril of the holder. Thus, the bill debtor has the right to raise his objections to the demands of the bill holder for the payment of interest and penalties provided for in Art. 48 Regulations. According to Art. 327 of the Civil Code of the Russian Federation, depositing a sum of money with a notary or court is the fulfillment of obligations. If such actions were taken, the debtor is not in arrears, and the interest and penalties provided for in Art. 48 Provisions, of course, cannot be enforced. In addition, the maker (in a promissory note) and the acceptor already know that the note is due (if it is a specific date) and must exercise reasonable initiative and interest in identifying the holder of the note. Thus, failure to present a bill on time primarily affects the extent of liability of the bill debtor. The bill must be presented for payment within strictly established periods: either on the day on which it is due to be paid, or on one of the next two business days. After these deadlines, the presentation of a bill of exchange for payment loses its relevance and legal significance. In some cases, as practice shows, it is impossible to establish the location of the drawer (in a promissory note) or the acceptor, or the specified debtors prevent the recording of the fact of presentation of the bill for payment. Thus, failure to present a bill of exchange for payment (acceptance) is not grounds for refusing to satisfy a claim on a bill of exchange against the principal debtor. Let's consider the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 13, 2004 N 3369/04. "Limited Liability Company" (hereinafter -) filed a claim with the Arbitration Court of the Republic of Tatarstan against the limited liability company "Zarya-M" for the recovery of 1 million 400 thousand rubles. bill amount and 802986 rubles. 30 kopecks bill interest on promissory note No. 001 dated October 1, 1999, issued by the defendant to the plaintiff. The original bill of exchange was attached to the claim materials. By decision of the court of first instance dated April 14, 2003, the claim was rejected. By the decision of the court of appeal dated July 7, 2003, the decision was left unchanged. The Federal Arbitration Court of the Volga District, by its Resolution of December 2, 2003, upheld the above-mentioned judicial acts. The courts proceeded from the fact that the holder of the bill had not proven the fact of presenting the bill to the drawer for payment before filing a claim with the arbitration court in the manner and within the time limits provided for by the Regulations on bills of exchange and promissory notes. By virtue of Art. 34, 70, 77 Regulations, as well as Art. 142 of the Civil Code of the Russian Federation, the exercise of property rights under a security is possible only upon its presentation. In an application for review by way of supervisory review of the decision of the first court and the decisions of the courts of appeal and cassation instances, filed with the Supreme Arbitration Court of the Russian Federation, he asks to cancel them, citing a violation by the courts that adopted them of uniformity in the interpretation and application of the law. Having checked the validity of the arguments set out in the application and the speech of the representative of the plaintiff who was present at the meeting, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized that the contested judicial acts are subject to cancellation, and the case is subject to remand for a new trial on the following grounds. According to Art. 77 of the Provisions, the rules relating to a bill of exchange apply to a promissory note, since they are not incompatible with the nature of this document. In accordance with Art. 53 of the Regulations, upon expiration of the time limits established for the presentation of a bill of exchange at sight or within such a time from presentation, the holder of the bill loses his rights against the endorsers, against the drawer and against other obligated persons, with the exception of the acceptor. Article 78 of the Regulations determines that the drawer of a promissory note is obliged in the same way as the acceptor of a bill of exchange. According to paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 N 33/14 “On some issues in the practice of considering disputes related to the circulation of bills of exchange,” a creditor who is unable to refute the direct debtor’s objections about the lack of proper presentation of a bill for payment is considered overdue. In this case, the court must proceed from the rules of Art. 406 of the Civil Code of the Russian Federation. In a similar way, the court should evaluate the arguments and objections of the parties in the case where the demand for payment on a bill of exchange is stated to the direct debtor directly in a lawsuit. Under these circumstances, the appealed judicial acts violate the uniformity in the interpretation and application of the rules of law by arbitration courts, which, in accordance with paragraph 1 of Art. 304 of the Arbitration Procedural Code of the Russian Federation is the basis for their cancellation. When resolving this dispute, the court should consider the stated requirement for payment of a promissory note on its merits, bearing in mind that the failure of the holder of the bill to present the bill of exchange for payment to the main debtor in the manner provided for in Art. 34, does not entail the termination of the obligation of the drawer to pay the bill by virtue of Art. 53 and 78 of this Regulation." If we follow the logic of the judicial acts of the arbitration courts of the first, second and third instances in the above-mentioned case, then in fact their decisions served to protect the interests of the unscrupulous drawer, and this is fraught with severe financial consequences for the bona fide bill holder. He cannot exercise his right to claim because he does not have evidence of the presentation of the bill for payment. The fact that the untimely presentation of a promissory note for payment does not terminate the obligations of the drawer was emphasized earlier in decisions of the Supreme Arbitration Court of the Russian Federation, the conclusions of which, as often happens in practice, were not and are not used in arbitration courts of lower instances. The drawer of the bill, the joint-stock company Norilsk Mining and Metallurgical Combine, by letter dated November 24, 1995 N 26/227, refused to pay the bill of exchange to the Joint Stock Commercial Bank First Professional Bank due to the delay in presenting it for payment. The Presidium of the Supreme Arbitration Court of the Russian Federation established the following. According to Art. 17, 43, 77 of the Regulations on a bill of exchange and a promissory note, the holder of the bill can bring his claim against the drawer if the latter fails to make payment on the bill on time, and the drawer cannot oppose the holder of the bill with objections based on personal relationships with the previous holder of the bill. Failure to present a promissory note for payment on time does not terminate the obligations of the drawer. Under such conditions, the refusal of Norilsk Mining and Metallurgical Combine JSC to pay the bill is unlawful. JSC "Norilsk Mining and Metallurgical Plant" is at the same time an acceptor of the bill of exchange dated August 10, 1995 N 138133, against which the bank, in the event of failure to protest non-payment in a public manner by virtue of Art. 53, 77 of the Regulations on bills of exchange and promissory notes does not lose its rights under the promissory note. Therefore, the arbitration court unreasonably refused to satisfy the demand for recovery of the amount on the bill due to the bank’s failure to file a public protest of non-payment. As already indicated, the presentation of a bill of exchange for payment by the holder of the bill of exchange is presumed. Here is what the FAS of the Volga-Vyatka District indicated on this matter in Resolution No. A31-1461/10 of January 28, 2004: “The applicant’s argument about the bill holder’s failure to comply with the procedure for presenting bills for payment cannot be taken into account by the court. According to paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 N 33/14, the burden of proving this circumstance lies with the drawer of the promissory note. OJSC “Kostromaoblgaz” did not prove that the holder of the bill, who presented in the proper place a demand for payment of bills with a photocopy attached, did not provide him with the opportunity to check the presence of genuine bills...” The drawer (acceptor) undertakes to pay a certain amount of money upon the maturity date specified in the bill. The deadline for fulfillment of the bill of exchange obligation has arrived, but it has not been fulfilled, which gives the holder the right to file a claim against the drawer (in a promissory note) and the acceptor, because they are liable for their obligations in all cases as the main bill debtors, as has been repeatedly indicated by judicial and arbitration practice. For example, the Supreme Arbitration Court indicated the following. “A commercial bank (bill holder) filed a claim with the arbitration court against the joint-stock company (bill holder) to recover the amount of a promissory note issued with a payment due on a certain day. The arbitration court rejected the claim, pointing out that the holder of the bill had lost his right to claim the bill against the drawer by virtue of Art. 53 of the Regulations on bills of exchange and promissory notes due to failure to protest the failure to pay the bill on time. The appellate instance overturned the decision and satisfied the claims, since in accordance with Art. 53, if the deadline for making a protest for non-payment of a bill is missed, the holder of the bill loses his rights against the endorsers, the drawer and against other obligated persons, with the exception of the acceptor. By virtue of Art. 77 Provisions of the norm Art. 53, relating to a bill of exchange, also apply to a promissory note, taking into account the fact that, according to Art. 78 of the Provisions, the drawer of a promissory note is obliged in the same way as the acceptor of a bill of exchange. Consequently, the holder of the bill retains, during the established limitation period, the right of claim against the drawer of the promissory note and in the event of failure to protest the bill.” ——————————— Clause 14 of the appendix to the information letter 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 bills of exchange in economic circulation.” Thus, the only and unconditional basis for filing a claim in accordance with paragraph 1 of Art. 43 of the Regulations on a bill of exchange and a promissory note against the drawer (in a promissory note) and the acceptor is the failure to make payment on the bill upon the due date of payment, and the very presentation or failure to present the bill for payment does not affect the legal status of the main bill debtor, who is obliged to make payment on the bill. This circumstance also cannot influence the filing of claims in court for collection of the bill of exchange debt. Two categories of subjects of bill relations have the right to bring a claim. The first category includes the holder of the bill, who may be the owner of the bill or the holder of the bill by virtue of a surety or pledge endorsement (Articles 18, 19 of the Regulations). The attorney and the pledgee can exercise their rights under the bill only if this directly follows from the endorsement. Persons who have received a bill of exchange by way of entrustment or as collateral without making a collateral or guaranty endorsement (for example, if the bill of exchange was received on the basis of a civil law agreement of agency or pledge) do not have the right to sue, which is also noted by the Supreme Arbitration Court of the Russian Federation. Thus, the organization filed a claim against the drawer of the bill to recover the amount of the bill. In support of his rights to make such a claim, the plaintiff presented a promissory note, a pledge agreement with the holder of the bill and a deed of transfer by which the bill was pledged to him. The last endorsement on the bill was made in favor of the pledgor. Since the drawer (mortgagor) did not fulfill its obligations under the loan agreement secured by collateral, the organization considered it possible to exercise its rights as a pledge holder by filing a claim against the drawer. By virtue of Art. 19 of the Regulation, a person who has a bill on the basis of an indoors containing a reservation “currency as a pledge” or an equivalent reservation has the right to exercise his rights arising from a bill. The Arbitration Court found that the Indo -Russian court containing a reservation “currency as a deposit” or an equivalent reservation was absent on the bill, and the plaintiff substantiated his rights as a pledge holder only by a general civil. However, civil law does not provide for the mortgage holder of the bill of the right to independently receive execution on it. By virtue of this, the court reasonably concluded that in this case, the person whose bill is in the pledge has no right to receive execution on this bill in the manner prescribed by the Regulation on the translated and simple bill. —————————— - clause 8 of the named application. The second category of persons entitled to submit a bill of bill are inscriptions who paid the bill (Article 47 of the Regulation) in the regression order. Persons obligated by the bill can also be divided into two groups. The first group is made up of the so -called basic bill debtors: a prominent of a simple bill and an acceptor of a bill of bill, an alkalist of a simple bill or an acceptor of a translated bill. The second group includes additional joint debtors, who are the translator of the translated bill, Indossants and their analists. To exercise the rights of the claim to the latter is required, in accordance with Art. 53 of the provisions, not only the presentation of the bill for payment (acceptance), but also the performance of the following additional actions: 1) the bill must be presented for payment (acceptance) in the strictly established deadlines provided for in Art. 33 - 42 provisions; 2) the refusal of acceptance or payment must be certified by an act drawn up in public (protest in non -acting or non -payment - Article 44 of the Regulation); 3) a bill with a reservation “turnover without costs” should be presented for payment within a deadline. If the above conditions are met, then according to Art. 47 of the Regulations on the translated and simple bill of exchange, all issued, accepted, indoed a bill or put Aval on it, are jointly obliged to the bill holder. The promoter has the right to file a lawsuit against all these persons, individually or together, not being forced to observe the sequence in which they pledged. In addition, the lawsuit brought by one of the obligated persons does not interfere with the presentation of claims to others, even if they pledged after the initial creditor. The legal consequences of the non -payment (non -act) non -certificate and non -payments generate bill legal consequences: they determine the liability of persons participating in a bill obligation. This circumstance should be certified by an act drawn up in a public way (protest in non -certificate and non -payment). Non -acting and non -payments, officially certified by protest, gives the promiser the right to regression to all inscriptions in a simple bill, to inscriptions and a traceant in the translated. The omission of the protest entails the exemption of the liability of the inscriptions, but not the acceptor in the transmitted bill and the drawer in a simple bill (Articles 53, 78 of the Regulation), which was previously repeatedly indicated by the highest courts. The Closed Tomag joint -stock company appealed to the Arbitration Court of the Kemerovo Region with a lawsuit against the main financial department of the administration of the Kemerovo region to recover 50 million rubles. The amount of a simple bill and 2595247 rub. penalties and interest on the basis of Art. 48 Regulations on the translated and simple bill. By the decision of April 7, 1997, the claims are fully satisfied. In appeal, the legality and validity of the decision were not checked. The Federal Arbitration Court of the West Siberian District with a decision of July 16, 1997 canceled the indicated decision, refused the landing of the plaintiff the evidence of the presentation of the original of the bill to pay the bill for the bill and evidence of the officially certified payment requirement. The Presidium with a resolution of March 3, 1998 N 5581/97 satisfied the protest on the following grounds. According to Art. 53 of the Regulation on the translated and simple bill of a bill of drawers after the expiration of the period for protest in non -payments loses its rights against the Indossants, the drawer and against other obliged persons, with the exception of the acceptor. The defendant himself was the defendant himself. In accordance with Art. 77 Regulations of the requirements of Art. 53, relating to a translated bill, also applied to simple, taking into account the fact that according to Art. 78 provisions of the promiser on a simple bill is obliged as a transceptant for a translated bill. It follows that the promoter retains the right to claim a simple bill and in case of imperfect protest of the bill of exchange within the prescribed period of the limitation period. Under such circumstances, the court of first instance lawfully satisfied the claims ... The bills are two categories of debtors: the acceptor, the recorder of a simple bill and their alkalists, who are called the main bill debtors, and the secondary persons - the indoor, the translator of the translated bill and their alleys, who are called, called intermediaries. The protest in non -certificate should be made within the period established for presentation to the acceptance. For protest, bills are accepted by notary offices the day after the date of payment on the bill, but no later than 12 hours of the next day after this period. A bill can be accepted for protest in non -certificate within the time period specified in Art. 44 Regulations on the translated and simple bill, and if the bill was presented to the acceptance on the last day of the term, then no later than 12 hours of the next day after this period. Difficulties in a practical nature are associated with the process of presenting the bill to payment (acceptance). In accordance with Art. 24 of the provisions of the promiser is not obliged to transfer the bill to the payer presented to the acceptance. It follows that the risk associated with the loss (death) or other event (for example, due to the dishonesty of the payer himself), is completely on the billister, who, in the absence of the document itself, cannot exercise its rights on a bill and may lose the rights of claims bill. In the provision itself, any norms governing the presentation of the bill for acceptance are not contained, which is undoubtedly a negative factor. In practice, any difficulties in presenting a bill for acceptance, as a rule, do not arise if the bill of drawers and the track are within the territory of one subject of Russia or in nearby entities. However, being at a considerable distance, not every promotioner can afford to leave specifically for the presentation of a bill to accept acceptance due to the high cost of travel, etc. When referring by mail or otherwise, the risk of raising the bill from the possession of a prominent with all the ensuing consequences adverse for him increases sharply. It seems that in such cases it is possible to use a copy of the bill for acceptance, although in Art. 67 of the Regulation provides only the possibility of indoing or making an aval on a copy in the same manner and with the same consequences as on the original. Another option to resolve this problem would be to leave a copy of the bill from the bill dealer. Moreover, on the basis of Art. 68 of the Regulation on the translated and simple bill, the copy must indicate the person in whose hands there is a genuine document obliged to hand the specified document to the legal holder of the copy. If it refuses to do this, the promoter can exercise the right to a lawsuit against the indoors or the alists after a protest that the original was not transferred to him, despite his demand. Thus, the promoter will have the right to regress to Indorsants and alisters, although in the meaning of the law it loses such a right to the drawer. It is also possible to use identical specimens of a bill of bill, but this is practically absent in the temporary bill circulation of Russia. According to Art. 64 provisions of a transfer bill can be issued in several identical copies. In addition, the promoter himself may demand the issuance of several copies at his expense. To do this, he must turn to his immediate Indossant, who is obliged to provide him with assistance in relation to his indoor and so on, ascending to the drawer. Indossants are required to reproduce indossuals on new specimens. At the same time, a bill of drawers can send one of the copies of the bill for acceptance (Article 66 of the Regulation). The promoter can exercise the right of a lawsuit after certificate with a protest that a copy sent for acceptance was not transferred to him and that an acceptance or payment could not be obtained by another copy. Thus, in this case, the rights of a bill of drawers will be protected. The deadlines for presenting a bill for dating in bill of bills are possible in two ways: acceptance immediately upon presentation and acceptance with a delay in time. The latter is allowed by virtue of Art. 24 of the provisions, according to which the payer may demand that the bill be presented a second time the day after the first presentation. Thus, the law strictly determines the period of time during which the track should express its consent to pay for the transfer bill. Theoretically, the time for thinking for the tracks cannot be more than 48 hours. A non -renewal of a response from the guide after this period gives the promiser the right to protest in non -certificate (Article 44 of the Regulation). From the moment of acceptance, the track, turning into an acceptor, becomes obligated to the bill holder completely independently. The promoter can exercise his rights only after the bill is presented to the payer to pay and after the protest. The route that accepts the bill is jointly obliged to the bill holder along with the persons who issued or indoured the translated bill. From the moment of acceptance, the track will be considered the main bill debtor and payer. The route that accepts the bill is obliged to the Indossant or the billist -in -law who paid the bill. The holder of the bill should always remember the terms of presentation to the payment, which must be observed in order not to lose the rights of the claim to joint bill debtors. In accordance with Art. 38 of the Regulation, the holder of a bill of transfer for a certain day or at so much time from compilation or from presentation must present a transfer bill for payment either on the day when it must be paid, or on one of the next two business days. Unfortunately, neither the bill law, nor the provision on the translated and simple bill contain the norms that somehow regulate the process of presenting the bill for payment. In addition, the law does not indicate in what cases a bill is considered presented for payment. As practice shows, in the vast majority of cases, the payer for the bill not only evades the payment of the bill, but also categorically refuses to receive any written documents from the bill of drawers on the requirement to pay the bill, fearing that they will be evidence of the presentation of the bill for payment. This problem could be solved, for example, by sending a claim to the debtor on postal services. But this is fraught with a missing deadline for the payment of a bill. If you send a written proposal earlier than the payment deadline, then the debtor must motivate his refusal to pay on a bill by the fact that the bill was presented earlier than the payment deadline. In the Regulation on the translated and simple bill there are no prohibitions on presenting the claim for the payment of the bill to the debtor. Therefore, we can conclude that such a claim for the debtor can also be presented orally, for example, by phone or when meeting with the representative of the debtor. The promoter, regardless of whether the bill was made for payment, is protested or not, in the future does not lose the right to claim to the main bill debtor. This follows from the fact that, firstly, the law does not connect, for example, the fact of the failure of the bill to pay with the loss of the right to present the claim to the main payer of the bill; Secondly, as follows from Art. 42 of the provisions, in the case of the failure of the transfer of the bill to payment within the time specified in Art. 38, each debtor has the right to introduce the amount of the bill to the deposit by the competent authority at the expense of the risk and fear of the bill holder. Thus, the interests of the debtor are also protected, because if he introduced a bill of bill to the deposit to the competent authority, it is believed that he fulfilled his obligations properly to the creditor, and the fact of delay of the debtor is not. The bill creditor will not have the right to demand the interest and penalties provided for by Art. 48 Regulations on the translated and simple bill. In practice, there are cases when the payer claims that the bill was not presented for payment, or demands the transfer of the original of the bill, and the bill dealer, on the contrary, proves that he applied to the payer to make payments on the bill, but cannot cite written Evidence of the presentation of the bill for payment in connection with the evasion of the payer from receiving it, and the bill cannot be transferred to the actual payment. According to Art. 38 of the Regulation, the holder of the bill must present the bill for payment. What is understood by presentation? These are the actions of the promoter, during which he, firstly, should show (and not transfer) the bill to the payer in confirmation that he is the legal owner of the bill, and secondly, in any form (including orally) to demand payment bills. With this in mind, the appeal of the bill of the bill to the court with a request to recover bill of bill is the presentation of the bill for payment. In addition, by virtue of Art. 46 of the Regulation of the burden of evidence of non -compliance with the deadlines (including the deadlines for presentation) lies on who refers to this circumstance in a dispute with the bill holder. In some cases, the payer requires the presentation of the original bills. But, from the point of view of the promiser, the bill should not be transferred to the payer until the payment is made to him. “There is no bill - there is no bill requirement.” Otherwise, the promoter loses the right to file a lawsuit based on a bill and a regulation on bills, which is confirmed by a numerous forensic arbitration practice, because by virtue of Art. 142 of the Civil Code of the Russian Federation, no other documents (an act of transfer, a contract of sale, lights of bills, etc.), in addition to the original of a bill of exchange, may evidence that a person is a legal holder of the bill. But, on the other hand, the payer himself is not interested in paying for bills until genuine bills are at his disposal, believing that in the event of dishonesty on the part of the bill holder, the latter after the payment made has the opportunity to give a bill to another person who may a second time may present the requirements of payment. This contradiction between the bill creditor and the bill debtor can only be allowed by making appropriate additions to Ch. VI Regulations on the translated and simple bill on clarifying the process of presenting bills for the payment of bills, about what is understood by presentation for payment, and when a bill is considered presented for payment. In addition, the actions of the debtor to fulfill the obligation must be indicated. So far, this is not, a bill of drawers and a bill debtor must show attentiveness and accuracy in the process of making a payment, transferring the original of the bill to the debtor (or a person who paid a bill). It seems that in our conditions, practical issues of presentation (acceptance), making payment, some security in bill transactions and the fulfillment of bill obligations are possible are possible only through the mediation of a notary or bank. References to the legal acts “Arbitration Procedure Code of the Russian Federation” dated 07.24.2002 N 95-ФЗ (adopted by the State Duma of the Federal Assembly of the Russian Federation 14.06.2002) “Civil Code of the Russian Federation (part one)” dated 11/30/1994 N 51-ФЗ (adopted by the State Duma of the FS RF 10/21/1994) Resolution of the CEC of the USSR and the Council of People's Commissars of 08.08.1937 N 104/1341 “On the introduction of the Regulation on the translated and simple bill” Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 13.07.2004 N 3369/04 Resolution of the FAS of the Volga-Vyatka District 01/28/2004 N A31-1461/10 Resolution of the FAS of the Volga District dated 02.12.2003 Resolution of the Plenum of the Supreme Court of the Russian Federation N 33, Plenum of the Supreme Arbitration Court of the Russian Federation N 14 dated 04.12.2000 “On some issues of the consideration of disputes related to the appeal of bills” Resolution of the Presidium of you РФ от 03.03.1998 N 5581/97 ИНФОРМАЦИОННОЕ ПИСЬМО Президиума ВАС РФ от 25.07.1997 N 18 «ОБЗОР ПРАКТИКИ РАЗРЕШЕНИЯ СПОРОВ, СВЯЗАННЫХ С ИСПОЛЬЗОВАНИЕМ ВЕКСЕЛЯ В ХОЗЯЙСТВЕННОМ ОБОРОТЕ» «КОНВЕНЦИЯ О ЕДИНООБРАЗНОМ ЗАКОНЕ О ПЕРЕВОДНОМ И ПРОСТОМ ВЕКСЕЛЕ» (Заключена в Женеве 07.06 .1930) Право и экономика, 2005, N 9

Discount bill

A bill of exchange can be used not only as a means of payment, but also as a way to generate income. For this purpose, you can place funds on a deposit, but it does not provide such opportunities as a bill. A bank bill is a convenient tool for placing available funds, combining profitability and the ability to use it in settlements with counterparties or as collateral.

A bank bill implies that the debtor is a bank, and the holder is legal entities, individual entrepreneurs and individuals. As a rule, banks offer interest and discount rates. Interest-bearing is a security containing the unconditional obligation of the bank to pay the bearer the amount and income on it on the terms specified in the document.

Discount

is a security that is purchased at a price below par and is redeemed at the end of the term at par. That is, the issue is carried out at a discount (discount) from the face value, and the difference between the sale price and its face value constitutes the holder’s income.

Figure 1. “Discount bill circulation scheme”

Data: “Handbook of Enterprise Financier”, N.P. Barannikova.

• A purchase agreement is concluded between the bank and the client, which specifies its denomination, sale price, repayment period and other important conditions.
• The buyer transfers a fee to the bank (sale price different from its face value).
• After receiving the funds, the bank transfers it to the client, which he can either keep for himself or use in settlements with counterparties.
• The holder uses the bill as a means of payment (at face value, not at purchased value).
• A bill of exchange can be replaced by several holders, the last of whom presents it to the bank for redemption.
• The bank redeems the bill at its face value.

Calculation of par value, purchase price and discount

nominal cost

= Sales price * (1 + (term * rate / 365*100))
Sales price
= Face value * (1 – (term * rate / 365*100))
Discount
= (Price * interest rate * term) / 365 *100

Example 1. (Definition of discount)

The organization purchased a bill of exchange with a nominal value of 20 thousand rubles from the bank. The period for presentation is 30 days. The discount rate is 10% per annum. Therefore, the discount size is determined by the formula:

Discount

= (Price * interest rate * term) / 365 *100

20 thousand rubles * 10 *30 / 365* 100 = 164.38 rubles

Example 2. (Determining the selling price)

The organization purchased a bill of exchange from the bank with a face value of 20 thousand rubles. The period for presentation is 30 days. The discount rate is 10% per annum. Therefore, the sale price of the bill is determined by the formula:

Selling price

= Nominal value * (1 – (term * rate / 365*100))

20 thousand rubles * (1 - (30*10/365*100) = 19,835.62 (Check: we add a discount to the selling price to get the face value of the bill. 19,835.62 + 164.38 = 20,000)

Example 3. (Definition of denomination)

The organization purchased a bill of exchange from the bank at a price of 19,835.62 thousand rubles. The period for presentation is 30 days. The discount rate is 10% per annum. Therefore, the denomination is determined by the formula:

nominal cost

= Sale price * (1 + (term * rate / 365*100));

9,835.62 * (1 + (30*10 / 365*100)) = 20 thousand rubles
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