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CBA
EXAMINATION
REVIEW
Volume 7

Business Law

Certified Bank Auditor Program


Certified Bank Auditor Examination Review — Volume 7

About BAI
For more than 75 years, BAI has focused on partnering with financial services companies to improve
their performance through strategic research and information, education and training delivery—all
designed to help our clients leverage their most important asset—human capital.
Today BAI provides a comprehensive range of end-to-end employee development solutions
designed specifically to meet the needs of financial services companies. BAI offers a wide range of
options for companies, including employee surveys, sales assessments, open enrollment conferences
and seminars, graduate schools and certification programs; as well as targeted learning and
performance solutions. These learning solutions include a variety of e-learning courses, instructor-
led workshops, independent study programs and customized seminars and for all employee
levels and functional areas within a financial services company. In addition to providing time-
tested training content and implementation assistance, BAI offers Aspen, a best-of-class learning
management system to help companies track and manage the their employee development
initiatives.
We believe one of the keys to our success is our unique ability to fully understand an organization’s
business challenges, specific employee development needs and goals so that we will be able to
recommend the appropriate solution(s) to ensure achievement of client business objectives. It
is our goal to focus on working in partnership with our clients to ensure successful design and
implementation of employee development initiatives. We continually strive to improve our solutions
and processes in an effort to help our clients realize their business objectives and to get a return on
their investment.

Acknowledgements
BAI would like to thank the following contributing authors, whose commitment and expertise made
the fi�h edition of the CBA Examination Review possible.
Leo Clarke is Counsel to Watkins & Eager in Jackson, MS. He has over 25 years experience practicing
and teaching commercial, corporate, banking and insurance law. He is a member of the California,
District of Columbia and Washington Bars and has taught law at Ave Maria School of Law, the
University of Dayton, the University of Washington and the University of Mississippi. He has
published scholarly and practical articles on those topics. He is an honors graduate of UCLA School
of Law and Stanford University.
Rob McDonough, CRP, CIDA is the President and CEO of Strategic Financial Solutions, Inc.
a financial services consultancy. Mr. McDouough also serves as an Executive Director of the
Global Financial Markets Institute, Inc., which specializes in capital markets, derivatives and risk
management consulting and training. Rob has an MBA in Finance and Economics from Georgia
State University and a BBA from Emory University in general business administration with a
concentration in marketing.
Paul J. Sanchez, CPA, CBA, CFSA conducts a CPA practice in Port Washington, New York. He
is also the owner of Professional Service Associates, a consulting and professional training and
development business servicing corporate clients (auditors, controllers etc.), CPA firms and others.
He is an owner and auditing and financial accounting seminar leader for the Person/Wolinsky CPA
Review Courses, a company that prepares candidates to pass the Uniform CPA Examination.
Mollie Newsome Sudhoff, CRCM, CRP is the President of Jefferson Cook Associates, Ltd. and
Senior Advisor, Manager Engagements Paragon Compliance Group Winnetka, Illinois. Ms. Sudhoff
holds a BBA from Emory University, Atlanta, GA and an MBA from Lake Forest Graduate School
of Management, Lake Forest, IL. Mollie directed the Compliance Program for BAI for several
years before forming Jefferson Cook Associates, Ltd. (JCA). JCA is a bank regulatory compliance-
consulting firm providing compliance review and executive search services. JCA is also a partner

ii
Introduction

in Paragon Compliance Group (Paragon). Paragon is a premier provider of compliance training


nationwide.

Foreword
BAI has maintained a strong commitment to serving the audit community. Since BAI’s founding in
1924, quality service to auditors and a dedication to enhance internal auditing practices, through
highly relevant audit research, professional development programs and technical publications,
has been one of our primary missions. The corner-stone of this commitment to excellence in bank
auditing is the Certified Bank Auditor (CBA Program).
The Certified Bank Auditor Program was established by BAI in 1967 in order to recognize those
audit professionals who excel in their field. The CBA Program serves as a commitment to the
banking industry, and to the public, that the profession of bank internal auditing is characterized as
possessing the utmost in professional qualities. The philosophy of the CBA program is to provide
a plateau beyond the basics of internal auditing knowledge, prepare the candidate to meet future
challenges, and to raise the professional status of bank internal auditing. Today, more than 5,000
individuals have earned the right to use the CBA designation a�er their name by demonstrating,
their knowledge of bank accounting, auditing principles and practices, bank regulations,
economics, management and commercial law. The CBA designation is earned by passing a rigorous
examination in each of the aforementioned areas. The program gives special recognition to people
who by demonstrating proficiency in prescribed standards of performance and knowledge, have
demonstrated a high level of competence and ethics.
This reference document has been prepared to assist and prepare the candidate to take the CBA
examination. This is the fi�h edition of the CBA examination study manual, and it has been
significantly revised to reflect current and progressive audit skill sets.

Preface
The purpose of the CBA Examination Review is to assist candidates in preparing for the Certified
Bank Auditor (CBA) professional examination by providing complete coverage of the subject ma�er.
The fi�h edition is a major enhancement from the previous editions. All material was expanded
significantly so that a single-source of comprehensive review materials is provided to the candidate.
This makes the candidate’s preparation time more effective and efficient. These references are
comprehensive. However, the candidate is advised to supplement these references with other
reading materials as needed.
The organization of this reference material parallels the common body of knowledge, which was
developed for the Certified Bank Auditor Program by BAI. The examination references are divided
into nine volumes:

iii
Certified Bank Auditor Examination Review — Volume 7

Volume 1: Financial Accounting (Part I, A)


Subject: Accounting

Volume 2: Managerial Accounting (Part I, B)


Subject: Accounting

Volume 3: Auditing Principles (Part II, A)


Subject: Auditing Principles and Bank Regulations

Volume 4: Bank Laws and Regulations (Part II, B)


Subject: Auditing Principles and Bank Regulations

Volume 5: General Audit Practices (Part III, A)


Subject: Auditing Practices

Volume 6: Auditing Specific Bank Applications (Part III, B)


Subject: Auditing Practices

Volume 7: Business Law (Part IV, A)


Subject: General Business

Volume 8: Economics (Part IV, B)


Subject: General Business

Volume 9: Management Issues (Part IV, C)


Subject: General Business

General Comments on the Examination

I. THE EXAM
CBA is the acronym for the Certified Bank Auditor Program. The CBA designation is internationally
recognized, and it is currently administered at nearly one hundred domestic and international
testing sites. The present examination consists of four parts, given on two consecutive days, in June
and November of each year. Candidates are allowed three-hours to complete each part, and the
current format of the CBA exam is entirely multiple-choice questions.
The CBA exam is designed to measure and evaluate basic technical competence of banking and
internal audit practices and procedures, including:
a. Application of technical knowledge.
b.Understanding of professional responsibilities.
c. Ability to make sound decisions.
The common body of knowledge is referenced in all BAI examination materials. The common body
of knowledge is an outline of primary skills and knowledge needed by industry professionals to be
judged technically proficient as a bank auditor. The examination and review guides are organized
in the same manner as the common body of knowledge to provide an organized study program.
Each section contains subheadings, and the subject ma�er is given an overall level of difficulty. BAI
has the responsibility to ensure the common body of knowledge is reflective of the current state of
internal auditing within financial institutions. Questions which appear on the CBA examination test
the material contained in the common body of knowledge on page vii.

iv
Introduction

II. A STUDY PLAN


Develop an overall study plan. First decide which parts of the exam that you wish to take. Statistics
indicate that candidates sit for an average of two parts. However, the trend recently has been for
candidates to take all four parts in their first si�ing. In general, candidates who believe they have the
necessary knowledge and experience are encouraged to take all four parts at their first si�ing.
The second step is to gather the necessary study materials. Allow sufficient time for processing and
shipping your examination review orders. When you receive the materials, review the complexity
and brevity of the subject ma�er so that you can determine your study needs and plan accordingly.
The third step is to prepare a time schedule for your self-study program. The objective of this plan
will be to master the common body of knowledge. It is recommended that you develop a schedule of
self-study sessions that systematically covers the topics.
It is recommended that candidates discuss questions, and study with associates and other CBA
candidates in organized study groups whenever possible. Statistics indicate candidates have more
success when preparing with study partners or groups.

III. EXAMINATION REVIEW MATERIALS


The examination review manuals were constructed using an exhaustive and detailed analysis of the
new CBA common body of knowledge, as well as all pertinent reference information. The material is
presented in nine comprehensive well cross-referenced volumes. The overriding consideration was
to provide comprehensive, effective and easy-to-use examination review guides.
The review material was designed and developed using the CBA common body of knowledge as the
frame work. At the beginning of each chapter of the review texts is a self contained table of contents.
This contents page directly corresponds to the respective portion of the common body of knowledge
for which it represents. Additionally, each volume contains an extensive cross-referenced glossary.
These features allow the candidate to easily move throughout the text, and concentrate on the
sections that pertain to their weak exam points.
The text makes extensive use of shaded boxes and bullet points. This style is used to make the
material easier to read, and to highlight key items throughout the reference. In the back of each of
the volumes, candidates will find an acronyms and abbreviations section.

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Certified Bank Auditor Examination Review — Volume 7

COMMON BODY OF KNOWLEDGE


Part I: Accounting
A. Financial Accounting (80–90%)
1. Accounting Principles
a. Conceptual Framework
b. Generally Accepted Accounting Principles
2. Bank Accounting
a. Financial Statement Presentation
b. Specific Accounting Treatment
c. Reporting Standards
3. Financial Statements
a. Ratio Analysis
b. Comparative Statements
c. Uses of Financial Statements

B. Managerial Accounting (10–20%)


1. Capital Investment Decisions
a. Cash inflows/outflows
b. Capital budgeting & income taxes
c. Net present value & internal rate of return
2. Budgets and Responsibility Reporting
a. Types of budgets
b. Profit/expense centers
c. Controllable and uncontrollable costs
d. Cost Accounting
3. Cost-Volume Relationships
a. Contribution analysis
b. Break-even analysis
c. Cost-benefit analysis
4. Financial Services Instruments and Products

Part II: Auditing Principles and Bank Laws


A. Auditing Principles (50–60%)
1. Standards for the Profession of Internal Auditing
a. Independence
b. Professional Proficiency
c. Scope of Work
d. Performance of Audit Work
e. Management of the Internal Audit Department
f. CBA Code of Ethics
2. Internal Control Structure
a. Purpose of Internal Controls
b. Responsibility for Internal Control
c. Audit Trails
d. Organizational/Departmental Structure
3. Evaluation of Internal Control Structure
a. Responsibility
b. Segregation of Duties and Dual Control
c. Compliance with Policies and Procedures
d. Cost/Benefit of Controls
e. Information Systems Processing

vi
Introduction

4. Management and Organization of the Audit Function


a. Audit Department Charter
b. Managing the Audit Department
c. Auditor Training
d. Communications with Management, Directors and Others
e. Audit Commi�ee
5. Internal Audit’s Relationship with the External Auditors
a. AICPA Statements on Auditing Standards (SAS)
b. Objectives, Responsibility and Authority
c. Independence and Objectivity
6. Audit Techniques
a. Workpapers—Preparation and Review
b. Statistical Sampling
c. Confirmations
d. Audit So�ware
e. Flowcharting
f. Work Programs/Questionnaires
g. Integrated Audits
h. Use of Microcomputers
i. Analytical Review
j. Audit Evidence
k. Compliance and Substantive Testing

B. Bank Laws and Regulations (40–50%)


1. Overview of the Regulatory Environment
a. Federal Reserve System
b. Office of the Comptroller of the Currency
c. FDIC
d. State Regulatory Systems
e. Other
2. Consumer Protection
a. Truth in Lending—Reg Z
b. Equal Credit Opportunity Act—Reg B
c. Electronic Funds Transfer Act—Reg E
d. Fair Credit Reporting Act
e. Fair Debt Collection Practices Act
f. Community Reinvestment Act—Reg BB
g. Consumer Leasing
3. Mortgage Lending
a. Home Mortgage Disclosure Act—Reg C
b. Fair Housing Act
c. Real Estate Se�lement Procedures Act
d. Other Real Estate Owned
4. Bank Organization
a. Bank Holding Company Act—Reg Y
b. Transactions with Affiliates—FRB Sections 23 A&B
5. Monetary Policy
a. Borrowing by Depository Institutions—Reg A
b. Reserve Requirements—Reg D
c. Interest on Deposits—Reg Q

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Certified Bank Auditor Examination Review — Volume 7

6. Bank Operations
a. Bank Protection Act � Reg P
b. Edge Act � Reg K
c. Depository Institution Management Interlocks Act � Reg L
d. Loans to Executive Officers � Reg O
e. Bank Secrecy Act
f. Foreign Corrupt Practices Act
g. Credit by Banks for Purchase of Margin Stocks � Reg U
h. Collection of Checks and other Items � Reg J
i. Availability of Funds and Collection of Checks � Reg CC
7. Other
a. Tax Equity and Federal Responsibility Act (TEFRA)
b. Financial Institution Reform, Recovery and Enforcement Act (FIRREA)
c. Bank Bribery Act
d. Trust � 12 CFR Part 9
e. FDIC Bank Improvement Act of 1991
f. Miscellaneous

Part III: Auditing Practices


A. General Practices (20–40%)
1. Application of Audit Techniques
a. Statistical Sampling
b. Confirmations
c. Audit So�ware
d. Analytical Review
e. Flowcharting
f. Auditor’s Use of Microcomputers
g. Risk Analysis
h. Computer Assisted Audit Techniques
2. Evaluating the Internal Control Structure
a. Internal Control Development
b. Input/Processing/Output Controls
c. Segregation of Duties
d. Separation of Processing and Development
e. Reconciliation of Input to Output
f. Control of Data Files
g. Authorization of Transactions
h. Physical and Data Security Access Control
i. End-User Computing - Including Microcomputers
j. Contingency Planning
3. Communications with Management, Directors, and Others
a. Board of Directors/Audit Commi�ee
b. External Auditors and Regulators
c. Auditee/Client
4. Audit Process
a. Audit Planning and Preliminary Surveys
b. Development of Audit Work Programs
c. Development of Audit Work Papers
d. Review and Evaluation of Findings
e. Report of Findings
f. Maintenance of Continuing/Permanent Work Papers and Files
g. Maintenance of a Key Indicator Program

viii
Introduction

B. Auditing Specific Bank Applications (60–80%)

Risks/Exposures, Control and Audit Objectives, and Audit Procedures


1. Assets/Income
a. Cash and Cash Items
b. Proof & Transit
c. Interoffice Accounts
d. Due from and Due to Banks
e. Investment Securities and other Investment Vehicles
f. Commercial Loans/Leases
g. Real Estate Mortgage and Construction Loans
h. Installment Loans
i. Loan Interest and Fee Income
j. Allowance for Loan-losses and Charged off Loans
k. Fixed Assets and Depreciation/Other Real Estate Owned
2. Liabilities and Owners Equity
a. Checking Accounts
b. Money Orders, Dra�s, and Official Checks
c. Savings Deposits
d. Time Deposits
e. Capital Accounts & Dividends
3. Other Services
a. Payroll and Employee Benefits
b. Funds Transfer
c. Collections
d. Safe Deposit
e. Night Depository
f. Travelers Checks
g. Savings Bonds
h. Customer Repurchase and Reverse Repurchase Agreements
i. Customer Securities Safekeeping
j. Off-Balance Sheet Items
k. Trust
l. Credit Cards

Part IV: General Business


A. Business Law (30 - 40%)
1. Uniform Commercial Code
a. Article 1 � General Provisions
b. Article 2 � Sales
c. Article 3 � Commercial Paper
d. Article 4 � Bank Deposits and Collections
e. Article 5 � Le�ers of Credit
f. Article 8 � Investment Securities
g. Article 9 � Secured Transactions
2. General Commercial Law
a. Wills, Estates and Trusts
b. Insurance
c. Guaranty and Suretyship
d. Partnerships
e. Agency
f. Contracts
g. Bankruptcy
h. Antitrust

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Certified Bank Auditor Examination Review — Volume 7

B. Economics (15–25%)
1. Macroeconomics
a. Economic System
b. Business Cycles, Growth and Inflation
c. Fiscal Policies and Theories
2. Forecasting
a. Business Conditions and Trends
b. Business Cycles
c. Economic Indicators
3. Money Markets
a. Role of Money and Commercial Banks
b. Monetary Management Theories
c. Role of Interest Rates
d. Short-term Savings and Debt Instruments
e. Bond and Stock Markets

C. Management Issues (25 - 35%)


1. Bank Management
a. Asset/Liability Management
1) Sources
2) Products
3) Matching of products for funding needs
b. Competitive Strategies
1) Products
2) Marketing
3) Customers
c. Human Resources/Personnel
1) Training and development
2) Recruiting
3) Ethics
d. Planning
1) Policies and Strategies
2) Budgets and Standards
e. Organizing
1) Theories of Management
2) Methods
f. Communicating with Management
1) Wri�en
2) Oral

x
Introduction

Volume 7: Introduction

Business Law
(Part IV, A)

T
he profession of bank internal auditing is a dynamic and creative enterprise.
Professionals in this field must demonstrate considerable intellectual flexibility to
remain effective in the constantly changing banking industry.
The Auditing Practices skill set constitutes the entire Part 3 of the CBA examination. This
part tests a candidate’s knowledge of the application of audit techniques as well as the
review and audit of both automated and manual systems of internal control. Additionally,
candidates are tested on their knowledge of the audit process and the auditor’s relationship
with internal and external sources.
This part of the examination complements Part 2 of the exam (Auditing Principles) in that
it tests candidates on their application of audit knowledge, rather than the mere concepts.
Consequently, because they are so closely linked, Parts 2 and 3 have been included in this
volume of the review manuals. It is recommended that these parts be studied together.
This reference manual is organized to directly correspond to the common body of
knowledge as well as to past examinations.

Important Note
The material in this publication was believed to be accurate at the time it was wri�en.
Due to the evolving nature of laws and regulations within the Auditing field, BAI makes
no guarantees as to the accuracy or completeness of the information contained in this
publication. The regulations and standards are continuously being updated and amended.
Therefore, BAI strongly recommends referring to the following web sites in order to
obtain the most up-to-date information and materials pertaining to Statement of Financial
Accounting Standards, GAAP statements and FASB statements and other supplemental
study materials.

Accounting
• Financial Accounting Standards Board www.fasb.org (www.fasb.org/ct)
• American Institute of CPAs www.aicpa.org
• U.S. Securities and Exchange Commission www.sec.gov

Auditing
• American Institute of CPAs www.aicpa.org
• U.S. Securities and Exchange Commission www.sec.gov
• Public Company Accounting Oversight Board www.pcaobus.org
• The Institute of Internal Auditors www.theiia.org

xi
Chapter One — Uniform Commercial Code

Chapter One

Uniform Commercial Code


Scope: Volume 7 constitutes Business Law, which makes up 30 to 40% of
Part 4 of the CBA exam. Volume 8 makes up Economics, which make up
15 to 25% of Part 4 of the CBA exam. Volume 9 addresses Management
Issues, which makes up 25 to 35% of Part 4 of the CBA exam

Chapter Topics
The following topics are addressed in this chapter:
1.1 Article 1 - General provisions
1.2 Article 2 - Sales
1.3 Article 3 - Commercial paper
1.4 Article 4 - Bank deposits and collections
1.5 Article 5 - Le�ers of credit
1.6 Article 8 - Investment securities
1.7 Article 9 - Secured transactions

Chapter Objectives
A�er completing this chapter, you will be able to:
• explain the general purpose of the Uniform Commercial Code (UCC)
• describe many of the integral definitions contained in Article 1 of the UCC
• explain the essential elements for a sales contract
• describe the rules for passage of title
• explain the methods and effects of acceptance and rejection of goods in a sale
• describe the different warranties
• identify the ways in which a contract may be breached and remedies available
• name the different types of commercial paper and roles/responsibilities of parties
• list the requirements for negotiability of an instrument and characteristics of non-negotiable
instruments
• summarize the rules regarding endorsements
• explain the concept of holder in the due course
• explain the bank and customer relationship
• describe responsibilities/ liabilities of banks and collection processes
• explain usage of le�ers of credit and distinguish between different types
• summarize the obligations of an issuer of a le�er of credit
• describe an issuer's lien and liabilities with regard to investment securities
• explain the general rules in regard to terms of securities
• summarize purchaser liability rules

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Certified Bank Auditor Examination Review — Volume 7

• explain the concept of a secured transaction


• identify the circumstances in which security interests a�ach
• summarize the methods and importance of perfection
• describe the function of a financing statement
• identify the rights, duties and remedies of parties to a secured transaction
• explain the ability of parties to dispose of collateral property a�er default
• distinguish between the different types of collateral

SECTION 1.1: ARTICLE L—GENERAL PROVISIONS

Purpose of the Uniform Commercial Code


The Uniform Commercial Code (UCC) has been the most important business development
in unifying state legislation with regard to commercial transactions. The purpose of the code
was to collect all aspects of these transactions into one body of law. It governs the sale of
goods (tangible personal property). The code was dra�ed by the Commissioners on Uniform
State Laws during the 1940s. Pennsylvania enacted the Code in 1952, and over the next few
years it was enacted by every state and territory except Louisiana and Puerto Rico.

Purpose of Article 1
• Simplifies and clarifies the law governing commercial transactions.
• Permits the expansion of commercial transactions through custom, usage,
and agreement of the parties.
• Makes the law uniform throughout the states and territories.

The provisions of the code may be changed by agreement among the parties except
when specifically forbidden by it. For example, good faith, diligence, reasonableness and
care may not be disclaimed. It should also be remembered that in the code, words in the
singular include the plural, and words in the plural include the singular. Also, words of the
masculine gender include the feminine and neuter, and words of the neuter gender may
refer to any gender.
The code is supplemented by the principles of law and equity, unless these principles are
in contradiction to it. These principles include the law merchant and the law relative to
the capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress,
coercion, mistake, bankruptcy, or any other validating or invalidating cause.
The remedies of the code are to be liberally administered so that the aggrieved party may
be put in as good a position as if the other party had fully performed. However, extreme
care should be taken when awarding consequential\special or penal damages except as
specifically provided in the code.

Article 1 (and General) Definitions


1. actions (with regard to a judicial proceeding)—Actions include recoupment,
counterclaim, setoff, suit in equity, and any other proceedings in which rights are
determined.

2
Chapter One — Uniform Commercial Code

2. aggrieved party—A party entitled to pursue a remedy.


3. agreement—The bargain of the parties in fact as found in their language or inferred
from other circumstances, including course of dealing, usage of trade, or course of
performance. (Whether an agreement has legal consequences is determined by the code
provisions, if applicable. Otherwise, it is determined by the law of contracts.)
4. bank—Any person engaged in the business of banking including a savings bank, savings
and loan association, credit union and trust company.
5. bearer—The person in possession of a negotiable instrument, document of title, or
security payable to the “bearer” or the “endorsed in” blank.
6. bill of lading—A document evidencing the receipt of goods for shipment issued by a
person engaged in the business of transporting or forwarding goods.
7. branch—includes a separately incorporated foreign branch of a bank
8. burden of establishing a fact—The task of convincing the triers of the fact that the
existence of the fact is more probable than its non-existence.
9. buyer in ordinary course of business—A person, who in good faith and without
knowledge that the sale to him is in violation of the ownership rights or security interest
of a third party in the goods, buys in ordinary course from a person in the business of
selling goods of that kind. A person buys in the ordinary course if the sale to the person
comports with the usual or customary practices in the kind of business in which the seller
is engaged or with the seller’s own usual or customary practices.
Buying may be for cash, by exchange of other property, or on secured or unsecured credit
and may include receiving goods or documents of title under a preexisting contract for
sale. Only a buyer that takes possession of the goods or has a right to recover the goods
from the seller under Article 2 of the UCC may be a buyer in the ordinary course of
business. This does not include a transfer in bulk. It also does not include security for—or
total or partial satisfaction of—a money debt.
10. conspicuous—A term or clause wri�en, displayed or presented conspicuously, i.e., in
such a manner that a reasonable person against whom it is to operate ought to notice it.
Courts decide whether a term or clause is conspicuous or not. A term or clause may be
made conspicuous by printing a heading in capital le�ers or, in the body, by printing that
language in a larger or contrasting type or color.
11. consumer—An individual who enters into a transaction primarily for personal, family or
household purposes.
12. contract—The total legal obligation which results from the parties’ agreement as
determined by the code and supplemented by other applicable laws.
13. creditor—A creditor includes a general creditor, a secured creditor, a lien creditor and any
representative of creditors, including an assignee for the benefit of creditors, a trustee in
bankruptcy, a receiver in equity and an executor or administrator of an insolvent debtor’s
or assignor’s estate.
14. defendant—A defendant includes a person in the position of defendant in a counterclaim,
cross-claim or third-party claim.

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Certified Bank Auditor Examination Review — Volume 7

15. delivery—The voluntary transfer of possession of instruments, documents of title, cha�el


paper or securities.
16. document of title—Documents of title include bills of lading, dock warrants, dock
receipts, warehouse receipts or orders for the delivery of goods. They also include any
other documents which in the regular course of business or financing are treated as
adequately evidencing that the person in possession of them is entitled to receive, hold
and dispose of the documents and the goods they cover. A document of title must profess
to be issued by or addressed to a bailee. It must also profess to cover goods in the bailee’s
possession which are either identified or are fungible portions of an identified mass.
17. fault—A fault is a default, breach, wrongful act or omission.
18. fungible goods—Goods of which any unit is, by nature or usage of trade, the equivalent
of any other like unit including goods that by agreement are treated as equivalent.
19. genuine—Something is genuine if it is free of forgery or counterfeiting.
20. good faith—Good faith is honesty in fact and the observance of reasonable commercial
standards of fair dealing.
21. holder—The holder is a person in possession of a negotiable instrument that is payable
either to the bearer or to an identified person that is the person in possession. The person
in possession of a document of title may also be a holder, if the goods are deliverable
either to the bearer or to the order of the person in possession.
22. insolvent—A person who has ceased to pay his debts in the ordinary course of business
(other than as a result of a bona fide dispute), or who cannot pay his debts as they become
due, or who is insolvent within the meaning of the federal bankruptcy law.
23. insolvency proceedings—Insolvency proceedings include any assignment for the benefit
of creditors or other proceedings intended to liquidate or rehabilitate the estate of the
individuals involved.
24. money—A medium of exchange currently authorized or adopted by a domestic
or foreign government. This includes a monetary unit of account established by an
intergovernmental organization or by agreement between two or more countries.
25. organization—In the code, an organization is defined as a person other than an
individual.
26. party (as distinguished from third party)—A party is a person that has engaged in a
transaction or made an agreement subject to the code.
27. person—In the code, a person is an individual; corporation; trust; business trust;
estate; partnership; limited liability company; association; joint venture; government;
governmental subdivision, agency or instrumentality; public corporation; or any legal or
commercial entity.
28. present value—The amount as of a date certain of one or more sums payable in the
future, discounted to the date certain by use of either an interest rate specified by
the parties—if that rate is not manifestly unreasonable at the time the transaction is
entered into—or a commercially reasonable rate that takes into account the facts and
circumstances present at the time the of the transaction.

4
Chapter One — Uniform Commercial Code

29. purchase—To purchase is to take by sale, lease, discount, negotiation, mortgage, pledge,
lien, security interest, issue or reissue, gi� or any other voluntary transaction which
creates an interest in property.
30. purchaser—A purchaser is a person that takes by purchase.
31. record—A record is information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
32. remedy—A remedy is any remedial right to which an aggrieved party is entitled with or
without resort to a tribunal.
33. representative—A representative is a person empowered to act for another including an
agent; an officer of a corporation or association; and a trustee, executor or administrator of
an estate.
34. right—A right is the same as a remedy.
35. security interest—Security interest is an interest in personal property or fixtures which
secures the payment or the performance of an obligation. This includes any interest of a
consignor and a buyer of accounts, cha�el paper, a payment intangible, or a promissory
note in a transaction that is subject to Article 9. Security interest does not include the
special property interest (see definition below) of a buyer of goods upon identifying
those goods in accordance with Article 2 of the code. However, the buyer may acquire a
security interest by complying with Article 9. For example, under Article 2 or 2A, the right
of a seller or lessor of goods to retain or acquire possession of the goods is not a security
interest, (except where a seller has shipped under reservation). Yet, a seller or lessor may
also acquire a security interest by complying with Article 9. The retention or reservation
of title by a seller of goods notwithstanding shipment or delivery to the buyer is limited to
a reservation of a security interest. Unless a lease or consignment is intended as security,
reservation of title thereunder is not a security interest. Whether a transaction in the
form of a lease is intended as security is to be determined by the facts of each case and is
governed by explicit Article 1 provisions.
36. send—In this case to send is meant in connection with a properly addressed writing,
record or notice which is deposited in the mail or delivered for transmission by any of
the usual means of communication and with postage or cost of transmission provided. In
the case of an instrument, properly addressed means to an address specified thereon or
otherwise agreed upon. If neither of those apply the instrument may be to any address
reasonable under the circumstances. The receipt of any writing or notice within the time it
would have arrived if properly sent has the effect of a proper sending.
37. signed—Something is signed if it uses any symbol executed or adopted by a party with
present intention to authenticate a writing.
38. state—A state means a state of the United States, the District of Columbia, Puerto Rico,
the United States Virgin Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
39. surety—A surety is a guarantor or other secondary obligor.
40. term—A term is the portion of an agreement which relates to a particular ma�er.
41. unauthorized signature—A signature is unauthorized if it is made without actual,
implied or apparent authority. This includes a forged signature.

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42. warehouse receipt—A warehouse receipt is a receipt issued by a person engaged in the
business of storing goods for hire.
43. writing—Writing is printing, typewriting or any other intentional reduction to tangible
form. The word ‘wri�en’ has a corresponding meaning, pursuant to Section 1-301 of the
code:
Any document authorized or required by the contract to be issued by a third party shall
be prima facie evidence of its own authenticity and genuineness and of the facts stated
in the document by the third party. Every contract or duty within the code establishes an
obligation of good faith in its performance or enforcement.
44. knowledge—Knowledge in the code means actual knowledge, and knows has a
corresponding meaning. Under the code words like discover, learn, etc., refer to
knowledge rather than reason to know.
45. notice—Under the code, a person has notice of a fact if (1) they have actual knowledge
of it, (2) they have received a notice or notification of it; or (3) from all the facts and
circumstances known to the person at the time in question, he or she has reason to know
that it exists.
A person receives a notice or notification when it either comes to that person’s a�ention,
or it is duly delivered (in a form reasonable under the circumstances) to the place of
business through which the contract was made (or to another location held out by that
person as the place for receipt of such communications). A person notifies or gives notice
or notification to another person by taking such steps as may be reasonably required
in order to inform the other person in ordinary course, whether or not the other person
actually comes to know of it.
Qualifying the above language about notice, the code indicates that notice, knowledge or
a notice or notification received by an organization is effective for a particular transaction
from the time it is brought to the a�ention of the individual conducting that transaction or
from the time it would have been brought to the individual’s a�ention if the organization
had exercised due diligence. An organization exercises due diligence if it maintains
reasonable routines for communicating significant information to the person conducting
the transaction and there is reasonable compliance with the routines. Due diligence does
not require an individual acting for the organization to communicate information unless
the communication is part of the individual’s regular duties, or the individual has reason
to know both of the transaction itself and that the transaction would be materially affected
by the information.
46. reasonable time—When the code requires an action to be taken within a reasonable time,
any time which is not manifestly unreasonable may be fixed by agreement. A reasonable
time depends on the nature, purpose and circumstances of an action. An action is taken
reasonably when it is taken at—or within—the time agreed. If no time is agreed upon, it is
within a reasonable time.
47. usage of trade—A usage of trade is a practice or method used with such regularity in a
place, vocation or trade as to justify an expectation that it will apply to the transaction in
question. The existence and scope of such a usage are to be proved as facts. If such a usage
is embodied in a wri�en trade code or similar writing, the court will interpret the writing.
48. course of dealing—Like a usage of trade, a course of dealing in a previous transaction
between parties establishes a common basis of understanding for interpreting their
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Chapter One — Uniform Commercial Code

expressions and other conduct. A course of dealing between parties and any usage of
trade give particular meaning to and supplement or qualify the terms of an agreement.
The express terms of an agreement and an applicable course of dealing or usage of trade
should be interpreted wherever reasonable as consistent with each other. Where they
are not consistent, express terms control both the course of dealing and usage of trade.
However, it should be remembered that a course of dealing controls usage of trade.
A contract for the sale of personal property is not enforceable by action or defense
beyond $5,000 in amount or value of remedy unless there is some writing. This wri�en
information must indicate that a contract for sale has been executed between the parties
at a defined or stated price, must reasonably identify the subject ma�er and must be
signed by the party against whom enforcement is sought or by his authorized agent. This
does not apply to contracts for the sale of goods, securities or security agreements. (See
definitions below).
A clause in a contract that allows one party in interest to accelerate payment or
performance or to require collateral or additional collateral “at will” or “when he deems
himself insecure” means that he shall have power to do so only if he—in good faith—
believes that the prospect of payment or performance is impaired. The party against
whom the power is exercised has the burden of establishing lack of good faith.
48. value—Except as provided in other portions of the code, a person gives value for rights
if the person acquires them (1) in return for a binding commitment to extend credit or for
the extension of immediately available credit (whether or not drawn upon and whether
or not a charge-back is provided for in the event of difficulties in collection); (2) as security
for (or in total or partial satisfaction of) a preexisting claim; (3) by accepting delivery
under a preexisting contract for purchase; or (4) in return for any consideration sufficient
to support a simple contract.

SECTION 1.2: ARTICLE 2—SALES

Purpose of Article 2
Article 2 of the UCC deals with contracts for the sale of goods. It is important to remember
that much of Article 2 may be varied by agreement of the parties and is supplemented by
course of dealing and usage of trade.

Article 2 Definitions
Article 2 has some specific definitions that are particularly relevant to the subject ma�er
contained in that article, in addition to the definitions contained in Article 1 that have
general applicability. Although these definitions apply to other articles, they are most
appropriately listed in Article 2.
• goods—Goods include all items which are moveable and personal property of a tangible,
physical nature. They also include the unborn young of animals, growing crops and
standing timber to be cut. Things a�ached to realty such as minerals or buildings are
considered to be goods if they are to be severed from the land by the seller. Money,
investment securities, intangible property, contract rights and accounts receivable are not
considered goods.

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• future goods—Future goods are goods that are not in existence at the time of the agreement
or have not been identified.
• sale—In a sales transaction, title to the goods is exchanged for a price. The responsibilities
of the two parties (buyer and seller) involved are measured by the contract. The seller
tenders the goods, while the buyer accepts the goods and pays the price.
• merchant—A merchant is a person who deals in the goods being sold or who holds himself
out as having knowledge or skill peculiar to the goods involved in the transaction.
• returned goods—The buyer may have the privilege of returning the goods delivered to
him. In a consumer purchase, where the goods are delivered for use, the transaction is
called a sale on approval. It is called a sale on return when the goods are delivered for resale.
This distinction is important, because goods delivered on approval are not subject to the
claims of the buyer’s creditors until the buyer has indicated acceptance of goods. Goods
delivered sale on return are subject to the claims of the buyer’s creditors while in the buyer’s
possession. This distinction is also important in cases where goods are lost, stolen, damaged
or destroyed.

The Sales Contract


Three sources supply the terms of a sale contract: (1) the express agreement of the parties; (2)
the course of dealing, usage of trade and course of performance; and (3) the code and other
applicable statutes.
The general rule in sales law is that the parties are free to contract regarding most basic
terms—quality, price, quantity, delivery, payment, etc. Frequently, the contract can
override the applicable code section(s) with a few exceptions. As mentioned above the
code obligations of good faith, diligence and due care cannot be disclaimed. In addition, a
liquidated damages clause cannot be a penalty, nor can a consequential damages’ limitation be
unconscionable.

Express elements required for sales contracts:


1. parties—All parties involved or affected must be described.
2. price—If a price is omi�ed, the contract will be enforced at a reasonable price.
3. time for performance—If time is omi�ed, then reasonable time is implied. If the contract
states time is of the essence, then delay in performance is a material breach, which means
the non-breaching party can terminate performance and sue for damages.
4. subject ma�er—Typically, before an agreement is considered enforceable, the quantity
must be included. If parties estimate the quantity involved, a quantity unreasonably
disproportionate to the estimate will not be enforced. For the most part, if no mention of
quantity is found, the contract is unenforceable. If, however, an estimate is not agreed on
a quantity in keeping with normal or other comparable prior output or requirements may
be implied.

Additional concepts in sales contracts


In addition to these elements of the sales contract, there are two concepts of ownership that
are fundamental to sales transactions: the notion of identification and the concept of title. If
something is identified, it means designated as the specific goods that will be utilized in the
transaction. On identification of goods to a contract, a special property interest (see definition
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below) in the goods is created on behalf of the buyer. This interest may be created before the
passing of title or delivery or possession of the goods.
Special property interest means the buyer has (1) an insurable interest in the goods, (2) the
right to inspect the goods at a reasonable time and at the buyer’s expense, (3) the right to sue
for damages caused by any third party who wrongfully destroys or damages the goods, and
(4) the right to demand the goods upon offering the full contract price, if the seller becomes
insolvent within ten days of the buyer’s first payment. If insolvency occurs before the first
payment, this right does not adhere.
The second concept is that of title, since a sale involves the passing of title from the seller to
the buyer. The parties can determine by their contract how title will pass. If the transfer of
title is not specified in the contract, and the location of title becomes an issue, the code sets
forth specific provisions regarding to whom the title shall pass. Most o�en title passes to
the buyer at the time and place at which the seller completes his performance as to physical
delivery of the goods.

Rules for Title Passing


There are specific rules that apply to the passage of title in the sales context.
• Usually, title passes when the seller completes performance with respect to physical
delivery.
• If a shipment contract, title passes at the time and place of shipment.
• If a destination contract, title passes when the seller tenders the goods to the buyer at the
destination point.
• If the seller has no duty to move the goods, title passes on the delivery of documents of title.
For example, if the goods are in a warehouse and the seller delivers the warehouse receipt
to the buyer, title passes at the time and place the warehouse receipt is delivered.
• With future goods, identification occurs when the seller ships the goods or specifies them as
the goods to which the contract refers.
The general rule is that the title acquired by a purchaser of goods is only as good as the title
of the transferor. When the seller has no title, the purchaser receives no title. The original
owner of the goods retains the title and may recover the goods.
If a transferor transfers title to a buyer where: (1) the transferor is deceived as to the identity
of the purchaser, (2) the delivery is in exchange for a bad check, (3) it was agreed to be a cash
sale or (4) the delivery was procured through fraud, the buyer receives a voidable title. This
means that the seller may void the buyer’s title to the items he has received. If, however, the
buyer with voidable title sells to a good faith purchaser for value of the items, the good faith
purchaser receives full title and it ceases to be voidable by the original transferor.

Methods of Accepting Goods; Rejection; Effect of Acceptance and Rejection


Before payment or acceptance of goods, the buyer has the right to inspect the goods at a
reasonable time and place and in any reasonable manner. If the buyer makes payment prior
to inspection and the subsequent inspection reveals defects, the buyer still has the right
to pursue remedies. The buyer must cover the inspection expenses. If the goods are non-
conforming and the buyer rejects them, the buyer can recover the inspection expenses from
the seller.
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If the goods are non-conforming, the buyer may reject all of the goods, accept all of the
goods or accept part of the goods. If the buyer notifies the seller of the breach within a
reasonable time, he may still pursue remedy for damages for breach of contract even if
the goods are accepted. To maintain the right to reject defective or non-conforming goods,
the buyer must notify the seller within a reasonable time a�er the goods are tendered or
delivered. The buyer forfeits his right to reject defective goods if he possesses the goods for
an unreasonable time. The buyer should give detailed information regarding the reason for
the rejection.
However, a buyer who rejects received goods must hold the goods with reasonable care long
enough for the seller to recover them. Since the buyer has a security interest in the goods
in his possession, he has the right to resell them. Therefore, a buyer of defective goods can
reject and resell the goods, deduct all expenses relating to care, resale, etc., and send any le�
over money to the seller.
Finally, if the rejection is for a relatively minor deviation from the contract, the seller has
the right to cure. Cure allows the seller to correct the defective performance. The seller must
notify the buyer of his intention to cure.
There are three methods of accepting goods:
1. A�er a reasonable opportunity to inspect the goods, the buyer indicates to the seller that
the goods are conforming or that he will keep them in spite of the non-conformity.
2. The buyer fails to make an effective rejection of the goods.
3. The buyer acts in a manner inconsistent with the seller’s ownership.

Revocation of Goods
Under special circumstances, the buyer may revoke his acceptance. This can happen if the
defect was not immediately discoverable when the goods were accepted or because the
buyer assumed that the seller would substitute conforming goods. The buyer must notify
the seller of revocation and revocation can occur only if the non-conformity substantially
impairs the value to the buyer. In this case, the buyer is placed in the same position relative
to the goods as if he had rejected them in the first place.
A buyer who does not receive the goods he bargained for may cover. Cover means to
purchase the needed goods from another source to substitute for those due from the seller.
The buyer may collect from the seller the difference between the cost of the substitute goods
and the contract price plus any incidental or consequential damages. In arranging cover, a
buyer must act reasonably and in good faith, but he does not have to obtain the substitute
goods at the cheapest price available.
A buyer who does not receive any goods from the seller or who receives non-conforming
goods does not have to cover but may sue for damages. The amount of damages is the
difference between the contract price and the market price when the buyer learned of the
breach plus any incidental or consequential damages. The buyer may deduct damages from
the amount he owes the seller but the buyer must notify the seller of his intention to deduct
damages.

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Warranties
Several warranties may be involved in a contract and may be implied or expressly stated:
1. warranty of title—The seller warrants good title, rightful transfer and freedom from any
security interest or lien of which the buyer has no knowledge. This warranty can only be
disclaimed by specific language or in circumstances which make it clear that the seller is
not vouching for the title. A seller who is a merchant warrants the goods to be free of any
rightful claim of infringement, (i.e., an act or claim that interferes with an exclusive right
of an owner). An infringement may occur when the buyer furnishes specifications to the
seller for the manufacturer of the goods. In this case the seller does not warrant against
infringement, and the buyer must protect the seller from any claims arising from such an
infringement.
2. express warranties—Express warranties include any affirmation of fact or promise which
is not just sales talk or an opinion and which becomes part of the bargain. The buyer
does not have to prove reliance on this affirmation and the seller does not have to intend
to create a warranty. A seller warrants the goods to be of the same general quality of the
sample, model or of his description.
3. implied warranties—Implied warranties arise as a ma�er of law and are legally present
unless clearly disclaimed or negated. Liability for the breach of an implied warranty
is based on the public policy of protecting the buyer of goods. There are two kinds of
implied warranties.
1) If the seller is a merchant who deals in goods of the kind involved in the contract,
an implied warranty of merchantability is created. This warranty means that the goods
are fit for the ordinary purpose for which goods of this type are used and will pass
without objection in the trade. This warranty applies to new and used goods in most
states unless the warranty is modified or excluded.
2) An implied warranty of fitness for a particular purpose is created when the seller knows
of the particular use of the good and knows the buyer is relying on the seller’s skill
or judgment to select or furnish suitable goods. The implied warranty of fitness is
applicable to both merchants and non-merchants. The warranty does not arise if
the buyer’s knowledge is equal or superior to the seller’s. The good is warranted for
the particular expressed purpose, and the seller may be liable if the good fails to so
perform.

Disclaimers
Warranty liability may be escaped or modified by disclaimers. However, a disclaimer
inconsistent with an express warranty is not effective and the express warranty is
enforceable.
Implied warranties can be disclaimed in writing if the language makes it plain that there
is, in fact, an implied warranty. A disclaimer of merchantability must include the word
“merchantability.” The disclaimer clause of the contract must be set forth in a conspicuous
manner, such as larger type or a different color ink. A disclaimer set forth in the same type
and color as the rest of the contract is not effective.
The parties to a contract may limit the remedies available in the event of a breach of
warranty. These remedies may be in addition to or in substitution of the remedies provided

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by the code. Some provisions may allow a seller to cure a defect or cancel a transaction by
refunding the purchase price and without further liability. Clauses limiting a seller’s liability
cannot be unconscionable. Consequential damages for personal injury related to consumer
goods cannot be limited. Damages for commercial loss, on the other hand, can be.

Common Methods of Breaching a Contract


The four common methods of breaching a contract are:
1. anticipatory repudiation by the buyer or the seller
2. failure of performance (buyer fails to pay or seller fails to deliver)
3. a rightful or wrongful rejection by the buyer
4. a rightful or wrongful revocation of acceptance by the buyer

Adequate Assurance
Adequate assurance is a concept applicable to both parties in a sales transaction. Either party
may become concerned about the other’s future performance. The buyer could fall behind
in payments or the seller could deliver defective goods to other buyers. A party who is
concerned about the performance of another party can demand—in writing—that the other
party offer convincing proof that he will perform. The insecure party may then suspend
performance while waiting for assurance. The contract is repudiated if assurance is not
provided within a reasonable time, not to exceed 30 days.

Remedies for the Buyer and the Seller


The code provides four remedies for the buyer and the seller in a breach of contract. The
following is a list of the remedies on an equivalency basis and in the order of importance.

Seller’s Remedies Buyer’s Remedies


1. resell the goods and recover damages 1. cover (buy same goods elsewhere) and recover damages
2. cancel the contract 2. reject the contract
3. recover damages for non-acceptance 3. recover damages for non-delivery
4. sue for the actual price of the goods 4. sue to get the goods (specific performance or replevin)

Buyer’s Right to Specific Performance and Replevin


The buyer has the right to specify performance if the goods are unique and other
circumstances make it equitable that the seller renders the required performance. In
addition, a buyer must be unable to cover to obtain the specific performance. Unique goods
are typically goods that are not practically available from other sources.
The statutory remedy of replevin allows the buyer to reach the goods in the hands of the
seller. If the goods related to a contract have been identified and the buyer has been unable
to make cover a�er a reasonable effort to do so, the buyer may replevin the goods from the
seller.

Insolvency of Seller or Buyer


If the seller becomes insolvent, the buyer may reach the goods in the hands of the seller

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only if (1) the existing goods have been identified in the contract and (2) the seller becomes
insolvent within ten days a�er receiving the first installment payment from the buyer.
Without these circumstances, the buyer is just a general creditor of the seller. If the buyer
discovers a�er replevin that the goods do not conform to the contract, the buyer may reject
them.
On discovering that a buyer is insolvent, a seller may refuse to make any further deliveries,
demand payment for all goods previously delivered under the contract, and/or stop any
goods in transit to the buyer and recover them from the carrier. If an insolvent buyer
receives goods on credit, the seller can reclaim the goods by demanding them within ten
days of their receipt by the buyer.

Seller’s Rights on Buyer’s Default


The seller may stop goods in transit or withhold delivery if the buyer has:
1. wrongfully rejected a tender of goods
2. revoked acceptance
3. failed to make a payment on or before delivery
4. repudiated either a part of the goods or the whole contract
It must be remembered that once the goods are in the buyer’s possession, the seller can
reclaim the goods only in the case of insolvency. If, on the other hand, the seller is in
possession of the goods when the buyer breaches, the seller can resell them. Furthermore, if
only part of the goods have been delivered, the undelivered portion can be resold. The seller
then has a claim against the buyer for the difference between the price the buyer had agreed
to pay (contract price) and the resale price. Also, if the buyer breaches or repudiates the
contract prior to the identification of the contract goods, the seller may resell the goods. This
is the case as well if the goods are unfinished—the seller can resort to the remedy of resale—
but only if he can show that the unfinished goods were intended for that particular contract.
The code requires that the seller use reasonable commercial judgment in determining which
course of action will mitigate his damages.
If resale is not a sufficient remedy, the seller may sue for damages when the buyer refuses
to accept the goods or repudiates the contract. Damages are equal to the difference between
the market price at the place for tender and the unpaid contract price plus any incidental
damages incurred as a result of the buyer’s breach. If this measure of damages does not
put the seller in as good a position as he would have had if the buyer had performed,
the measure of damages will include the profit the seller would have made from full
performance by the buyer plus incidental damages.
If the buyer fails to pay for the goods when due, the seller may sue for the contract price of
the goods if:
• the buyer has accepted the goods
• the goods were destroyed a�er risk of loss passed to the buyer
• the resale remedy is not practicable
In cases such as specially manufactured goods where the right to resell is not available, the
seller may collect the purchase price. If the seller sues for the price, the goods are treated as
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if they belong to the buyer even if the goods are in the possession of the seller. If the seller
obtains a judgment against the buyer, the seller may still resell the goods prior to collection
of the judgment. If the seller does resell the goods, he must apply the proceeds toward
satisfaction of the judgment. If the buyer pays any balance due on the judgment, the buyer is
entitled to any goods not resold.

Notice of Breach
A buyer must give a notice of breach (i.e., notice of any alleged breach of express and implied
warranties) within a reasonable time a�er the facts comprising the breach are discovered or
should have been discovered using reasonable care. All remedies are barred if the required
notice is not given. Any notice of alleged breach may be oral or in writing. Wri�en notice is
preferred. The only requirement is that the buyer notifies the seller of the defect in the good.
The three reasons behind the notice requirement are:
1. The seller has the right to cure. This allows the seller to minimize his loss and the buyer’s
damages.
2. The seller has time to arm himself for negotiation and litigation.
3. The seller is provided some psychological protection. The seller can stop worrying about
potential liability a�er a reasonable amount of time.

SECTION 1:3: ARTICLE 3—COMMERCIAL PAPER


[B]Definitions: Negotiable Instruments & Commercial Paper
A negotiable instrument has the capacity to pass like money from person to person and is
used as a medium of exchange. It is also a special type of wri�en contract that represents
credit and functions as a money substitute. Negotiable instruments developed out of the
commercial need for an instrument that would be readily accepted in lieu of cash and that
would, therefore, be freely transferable. This is because it became necessary to shield the
transferee from most of the defenses that the primary party (maker) might have against the
payee so that the primary party could not assert the defenses against the person to whom the
instrument was transferred. Each party who transfers the instrument is required to assume
liability to pay in the event that the maker or other primary party fails or refuses to pay.
The key to this section of the law is the ability or legal power of a transferor, under certain
circumstances, to transfer be�er rights than he possesses.
Commercial paper is a term used to describe certain types of negotiable instruments.
Commercial paper consists of two basic types of negotiable instruments: dra�s and notes. A
dra� is a wri�en order to some other entity to pay money to a third party. Three parties are
involved in the consummation of a dra�. The party addressing and signing the dra� is the
drawer. The drawee is the party directed to pay the sum certain in money to the third party.
The third party is referred to as the payee. An example of a dra� is a check. A check is an
order by the drawer directing the drawee (bank) to pay money to the payee of the check. A
note is a wri�en promise to pay (other than a certificate of deposit) by a party—the maker—
a sum certain in money to the order of another party—the payee or the bearer of the note.
Hence this form of commercial paper includes promissory notes, bank certificates of deposit,

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and cashier’s checks.

Requirements of A Negotiable Instrument


The terms wri�en on the face of an instrument determine its negotiability. Four basic
requirements must be met for an instrument to be considered negotiable.
1. must be in writing and signed by the drawer or maker
2. must contain an unconditional promise or order to pay a sum certain in money
3. must be payable on demand or at a definite time
4. must be payable to order or to bearer
1) The first requirement is that the instrument must be in writing and must be signed by
the drawer or maker. The signer may use his own name, an assumed name, a rubber
stamp, initials and last name or a recognized symbol, as long as the method used is
intended by the drawer to be a signature. The signature is not required to be at any
particular location on the instrument.
2) The second requirement is that the instrument must contain an unconditional
promise or order to pay a sum certain in money, though the exact word “promise”
does not have to be used. The mere wri�en acknowledgement that a debt exists
(an IOU) is not a promise, and the instrument is, therefore, non-negotiable. A dra�
must contain an order to pay. The language must signify more than a request or
authorization to pay; it must be a direction to pay.
The promise or order must also be unconditional. A promise or order is conditional
if the instrument states that it is subject to or governed by another agreement, or if
the instrument states that it is to be paid only out of a specified fund. However, an
instrument is not rendered conditional if the instrument states the consideration
or the transaction from which the instrument arose or states that the instrument is
secured by a mortgage or other security interest.
Therefore, in this area, a fine distinction must be drawn between language that
imposes the terms of another agreement (conditional promise, non-negotiable)
and language that is simply informative (unconditional promise, negotiable). The
requirement that the instrument be payable in a sum certain in money means that the
instrument may not be payable in cha�els (barley), but it may be payable in foreign
or domestic currency depending upon the individual instrument. If the principal sum
to be paid is definite, negotiability is not affected by the fact that the instrument is to
be paid with interest, in installments, or with a discount or addition for early or late
payment.
3) The third requirement of negotiability is that the instrument must be payable on
demand or at a definite time. An instrument is payable on demand if it so states,
if it is payable on sight or presentation, or if no time of payment is stipulated. The
language “payable on demand” is normally used in notes. The words “at sight”
are used in dra�s. A negotiable instrument that does not specify a due date is o�en
referred to as demand paper. An example of demand paper is a check.
An instrument is payable at a definite time if the instrument states that it is payable
(1) at a fixed period a�er presentation, (2) prior to a stated date, or (3) at a fixed

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time a�er a stated date. Instruments are also payable at a definite time if the definite
time is subject to acceleration (if provided for in the instrument), or if the definite
time is subject to an extension at the option of the holder or to extension to a further
definite time at the option of the maker or acceptor. An instrument will be deemed
non-negotiable if the instrument is payable only on the occurrence of an event or act
uncertain as to the time of occurrence, e.g., a promise to pay Joe $250 upon John’s
death.
4) The fourth requirement of negotiability is that the instrument must be payable to
order or to bearer. Bearer paper means that payment will be made to anyone who pos-
sesses or bears the instrument. Bearer paper can be negotiated by delivery without
endorsement. The UCC states that an instrument is bearer paper if it is payable (1)
to bearer, (2) to the order of bearer, (3) to a specified person or bearer, or (4) to cash
or the order of cash.
Order paper is created when the instrument states that payment will be made to the
order of a designated payee or to anyone that such a payee may order or direct.
Order paper can be negotiated only by both endorsement and delivery.
An instrument may be payable to the order of two or more payees together, for
example, “Joe and John,” or in the alternative, “Joe or John.” If the instrument
is payable to “Joe and John,” further transfer requires endorsement by both Joe
and John. If the instrument is payable to “Joe or John,” further transfer requires
endorsement by either Joe or John, not both parties. An instrument may be payable to
the order of a trust, fund or estate. An instrument may also be payable to the order of
an officer.

Additional Characteristics of Negotiable Instruments


Additional wording o�en does not affect the negotiability of an instrument. If the
drawer includes a provision saying that by endorsing or cashing the instrument the
payee acknowledges full satisfaction of an obligation by the drawer, this does not affect
negotiability. In addition, the omission of language stating the consideration for which
an instrument was given will not affect the instrument’s negotiability. The dating of an
instrument is also not an essential requirement of negotiability. Also, an instrument may
contain terms that are handwri�en, typed, or printed. Where the instrument contains
discrepancies, handwri�en terms control typed and printed terms, and typed terms control
printed terms. An instrument may also contain a discrepancy between the words and the
figures. The words control, unless the words are ambiguous, then the figures control.
When an instrument provides for the payment of interest but does not state an interest rate,
the rate is set at the judgment rate at the place of payment. The judgment rate is specified by
statute. Interest starts at the date of the instrument or, if it is undated, from the date of issue.
An incomplete instrument cannot be enforced. However, an instrument can be completed
by any individual in accordance with the authority or instructions given by the party who
signed the incomplete instrument. Unauthorized completion, on the other hand, is treated
as a material alteration of the instrument, though a holder in due course (see below) can
enforce the instrument as completed. In this case, the individual who signed the incomplete
instrument must bear the loss because he made the wrongful completion possible. However,

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an individual who is not a holder in due course is subject to the defense of improper
completion.

Characteristics of a Non-negotiable Instrument


1. If it is not payable to order or to bearer
2. If it is payable on the occurrence of an uncertain event

An instrument may be transferred by either negotiation or assignment. The transfer of


an instrument vests in the transferee the rights that the transferor possesses. Negotiation
is a particular type of transfer by means of which the transferee becomes a holder. With
negotiation, a transferee may obtain greater rights than were held by the transferor. For
example, if an instrument is payable to bearer and it is stolen by a thief or found by a finder
and they transfer the instrument to another person, the person to whom it is transferred
may receive full rights as if it had been transferred directly from the issuer. An individual is
a holder if he is in possession of an instrument drawn, issued or endorsed to him, his order,
to bearer or in blank.
If the instrument is bearer paper, only delivery is required for negotiation. However, if the
instrument is order paper, both endorsement and delivery are required. For the negotiation
to be effective, the endorsement must convey the entire instrument or any unpaid balance
on the instrument. The endorsement will still be effective even if the endorser adds to his
endorsement words of assignment, waiver, guarantee, or limitation or disclaimer of liability.

Liability of Commercial Paper


The liability of an individual in a commercial paper transaction is predicated either on the
instrument itself or on the underlying contract. A person is not liable unless his signature
appears on the instrument or unless his signature has been placed on the instrument by his
duly authorized agent.
The location of a person’s signature usually will denote the capacity in which the person
signed. Endorsers normally sign on the back of the instrument, and makers and drawers
generally sign in the lower right-hand corner on the face of the instrument. Ambiguous
signatures that fail to show the capacity of the party who signed the instrument are treated
as endorsements. When an agreement requires two signatures, the drawee (bank) may not
pay on only one signature, even if the signature is properly authorized.
Duly authorized acts by an agent will bind the principal. An agent who fails to name his
principal or who lacks the authority to bind his principal will be liable to third parties. An
agent will also be liable if he fails to exhibit his representative capacity. The agent’s liability
to third parties is based on the premise that a purchaser of commercial paper is entitled to
rely on what appears on the face of the instrument. There are two exceptions to the rule
that an authorized agent’s signature does not bind the principal. The principal must assume
liability if (1) he ratifies the transaction or (2) if he is stopped from asserting lack of authority.

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Parties to Commercial Paper


The parties to commercial paper transactions may be subdivided into primary and
secondary parties. Primary parties consist of the makers of notes and the acceptors of dra�s
and are the parties who will actually pay the instruments. Secondary parties consist of
drawers of dra�s and checks and endorsers of any instrument. Drawers and endorsers have
a secondary responsibility: an obligation to pay if the primary parties do not pay provided
certain precedent conditions are fulfilled.
A primary party engages that he will pay the instrument according to its terms at the time
of execution. An important factor to be remembered is that the drawee bank is not liable
on a check until acceptance. Certification is the usual method of accepting a check. On
certification, the bank becomes the principal debtor because the bank appropriates from the
depositor’s account the necessary funds to pay the instrument. If a check is duly presented
for payment to the payor bank otherwise than for immediate payment over the counter,
the check is dishonored if the payor bank makes timely return of the check or sends timely
notice of dishonor or non-payment under Article 4 provisions (4-301&4-302), or becomes
accountable for the amount of the check under Section 4-302.

Secondary Parties
Drawers, endorsers, accommodation parties, and guarantors are all considered secondary
parties. The drawer engages that on the dra�’s dishonor and any necessary notice of
dishonor or protest (see definition below), he will pay the amount of the dra� to the holder
or to any endorser.
Unqualified endorsers are secondarily liable on instruments by virtue of their contract of
endorsement. An endorser who adds the words “without recourse” to his endorsements
is required to pay only if the instrument is properly presented to the primary party, is
dishonored and if notice of dishonor is provided to the endorser. The endorser obligates
himself to pay the instrument according to its terms. Therefore, an endorser of an altered
instrument assumes liability on the instrument as altered.
An individual who lends his name and credit to another party by signing an instrument
is referred to as an accommodation party. The accommodation party may sign as a maker,
endorser, acceptor, co-maker or co-acceptor, but his primary function is that of a surety. The
accommodation party is liable in the capacity in which he signed.
A guarantor is one who contracts to answer for the debt, default and miscarriage of another.
The words of guarantee determine the liability of the guarantor. If the words “payment
guaranteed” are added to the guarantor’s signature, the guarantor is obligated to pay the
instrument (if it is not paid when due) without prior resort by the holder to other parties on
the instrument. The words “collection guaranteed” means that the guarantor is liable only
a�er the holder has a�empted to collect from all other parties. If the words of guaranty on
the instrument are unclear, they will be deemed to constitute a guarantee of payment. If an
endorser guarantees payment, he waives the conditions precedent of presentment, notice of
dishonor and protest.
The secondary liability of parties, such as drawers and endorsers is o�en referred to as
conditional liability. The term conditional refers to the required conditions precedent that

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Chapter One — Uniform Commercial Code

must be satisfied to establish secondary liability. As stated earlier, the conditions precedent
are presentment, dishonor, notice of dishonor and, in some circumstances, protest. Failure to
comply with the conditions precedent will result in either the partial or complete discharge
of the secondary parties.

Classes of Endorsements
In general, endorsers of commercial paper warrant that the instrument has not been
materially altered and that all signatures are good. There are two basic classes of
endorsements: blank or special.
A blank endorsement is simply the endorser’s (customer’s) signature. A blank endorsement
converts order paper to bearer paper. A special endorsement specifies the party (endorsee)
to whom or to whose order the endorsement makes the instrument payable. Further
negotiation requires the endorsee’s signature. Bearer paper when specially endorsed
becomes order paper. Blank or special endorsement can be restrictive or qualified.
Restrictive
Blank
Qualified
Endorsements
Restrictive
Special
Qualified
A restrictive endorsement restricts the endorsee’s use of the instrument and does not prevent
further transfer or negotiation of the instrument. A restrictive endorsement is o�en
used when a check is deposited in a bank for collection (“For deposit only, Paul Jones”).
Restrictive endorsements are substantially limited as applied to banks that are involved in
the deposit and collection of negotiable instruments.
The UCC provides that any restrictive endorsement may be disregarded by an intermediary
or payor bank that is not a depository bank, except that of the bank’s immediate transferor.
This limitation does not affect any rights the restrictive endorser may have against the
depository bank, or his rights against parties outside the bank collection process.
An example of a qualified endorsement is when the transferor disclaims any liability on the
instrument by including the words “without recourse” in his endorsement. This type of
endorsement does not prevent the transferee from being a holder in due course. An example
is “Pay to John Smith without recourse, Paul Jones.”

Holder in Due Course


A third party who rightfully and legally possesses an instrument may be an assignee, a
transferor, a holder, or a holder in due course. If the instrument is a simple contract, the
third party is an assignee. If the third party possesses a negotiable instrument that has been
improperly negotiated, the party is a transferee with the status of an assignee.
According to the UCC, a holder is a party in possession of a negotiable instrument issued,
drawn, or endorsed to his order, to him, to bearer or in blank. A holder in due course has
a special status and a preferred position in the event there is a claim or a defense to the
instrument. The distinct benefit of negotiability is the ability to transfer the instrument to a
holder in due course.

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Value, Consideration and Good Faith


There are three requirements that must be met before a holder becomes a holder in the due
course. The holder must have acquired the instrument (1) for value; (2) in good faith; and (3)
without notice that is overdue, has been dishonored, or any other person has a claim to or
defense against it.
Value does not have the same meaning as consideration in the law of contracts for Article 3 of
the UCC. In fact, value is any consideration sufficient to support a simple contract for all of
the UCC except in Article 3 and 4. In Article 3, an executory promise will not meet the value
requirement to be a holder in due course. Purchase of an instrument for less than its face
value by a holder may still qualify the party as a holder in due course for the instrument’s
full amount. However, if the promise to pay is negotiable in form (a negotiable note), it does
establish value.
If a party accepts an instrument when he knows—or has reason to know—of a claim or
defense, the party has not acted in good faith. Case law commonly provides that a person
has reason to know if he possesses information from which an individual of ordinary
intelligence will conclude that the fact exists; or if there is such a strong probability that it
exists, then an individual exercising reasonable care will assume that it exists.
Here are a few examples:
1. Instruments that are incomplete in some material respect at the time of their purchase
provide sufficient notice to the purchaser, and the purchaser is then not a holder in due
course.
2. A person who purchases an instrument with notice that it previously has been dishonored
cannot qualify as a holder in due course.
3. A purchaser of an overdue instrument is charged with knowledge that some defense may
exist; therefore, he cannot meet the requisites of a holder in due course.
4. A purchaser of demand paper cannot qualify as a holder in due course if he has reason to
know that he is purchasing it a�er a prior demand for payment has been made, or if he
takes it more than a reasonable length of time a�er its issue. A reasonable or unreasonable
length of time is determined on the basis of the a�endant facts and circumstances.
However, a check is presumed to have a reasonable time period of 30 days a�er its initial
issue.

Real and Personal Defenses


A real defense is a type of defense that is good against any possible claimant, so the maker or
drawer of a negotiable instrument can raise it even against a holder in due course. Examples
are: fraud in fact, forgery of a necessary signature, etc.
A personal defense, on the other hand, is an ordinary defense in a contract action—such as
failure of consideration or non-performance of a condition—which argues that the maker or
drawer of a negotiable instrument is precluded from raising against a person who has the
rights of a holder in due course.

Warranties
Secondary parties are also subject to unconditional liability for breach of implied warranties.
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Chapter One — Uniform Commercial Code

Warranties are made when an instrument is transferred or presented. The party presenting
the instrument warrants that no endorsements are forged and that to his knowledge the
signature of the maker or drawer is genuine. The presenter also warrants that the instrument
has not been materially altered.
By endorsing the instrument, the transferor warrants that he has good title to the
instrument, that the signatures appearing on the instrument are genuine or authorized, that
the instrument has not been materially altered, and that no defense of any party is good
against him.

Presentment and Dishonor


Presentment means a demand made by—or on behalf of—a person entitled to enforce an
instrument (1) to pay the instrument made to the drawee or a party obliged to pay the
instrument or, in the case of a note or accepted dra� payable at a bank, to the bank; or (2)
to accept a dra� made to the drawee. Presentment may be for acceptance or for payment.
Presentment for acceptance does not apply to promissory notes. However, it is o�en
required in the case of dra�s. The drawee of a dra� is not bound until acceptance of the
dra� by the drawee. Presentment for payment is normally sufficient and presentment of
an instrument for acceptance is not required. Failure to make a proper presentment for
payment results in the complete discharge of an endorser.
Presentment may be made in person, by mail or through a clearinghouse, (an association
of banks or other payors who regularly clear items.) Presentment by mail is effective on
the date the mail is received. The party to whom the instrument is presented may without
dishonor require the instrument’s exhibition, reasonable identification of the individual
making presentment, and evidence of the individual’s authority to present the instrument.
Presentment also may be required at a location specified in the instrument.
If the party to whom the instrument is presented refuses to accept or pay the instrument,
then the instrument is dishonored. The presenting party then has recourse against all
endorsers and other secondary parties if notice of dishonor is provided to these secondary
parties.
The holder has an immediate right of recourse against the secondary parties who receive a
prompt notice of the dishonor. Failure to provide prompt and proper notice of dishonor may
result in the discharge of the endorsers. The UCC permits any party who may be required to
pay the instrument to notify any party who may be liable on it.
Generally, notice of dishonor must be given before midnight of the third business day a�er
dishonor. However, banks must provide notice before midnight of the next banking day
following the day on which a bank receives the item or notice of dishonor (i.e., the midnight
deadline). Notice may be conferred in any reasonable manner including oral notice and
notice by telephone or mail. Wri�en notice is effective when sent even if it is not received,
assuming proper address and postage.
An unexcused delay in making a necessary presentment or in giving notice of dishonor
discharges all parties who are entitled to performance of the conditions precedent. Such an
unexecuted delay completely discharges all endorsers. Drawers, makers of notes payable
at a bank, and acceptors of dra�s payable at a bank are discharged to the extent of any loss

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caused by the delay. If the holder acts with reasonable diligence, and if the delay is not the
fault of the holder, then any delay in making presentment, in giving notice of dishonor or in
making protest will be excused.

Protest
Protest is a formal method of fulfilling the conditions precedent. Protest is required only for
dra�s that are drawn or payable outside the U.S. The protest is a certificate which states that
an instrument was presented for payment or acceptance and was dishonored, and explains
why the instrument was not accepted or paid.

SECTION 1.4: ARTICLE 4—BANK DEPOSITS AND COLLECTIONS

Purpose of Article 4
Article 4 of the UCC governs the collection by banks of checks and other instruments for the
payment of money. This article provides the rules that govern the interrelationships of banks
and banks’ relationships with depositors in the collection and payment of items.

Article 4 Definitions
• deposit accounts—time deposits, demand deposits, savings deposits, passbooks, and share
dra�s (a Certificate of Deposit is not a deposit account)
• depository bank—the first bank to take an item even though it is also the payor bank,
unless the item is presented for immediate payment over the counter
• payor bank—the drawee of a dra�
• intermediary bank—any bank to which an item is transferred in the course of collection
except the depository or payor bank
• collecting bank—any bank handling an item for collection except the payor bank
• presenting bank—any bank presenting an item to a payor bank

The Bank/Customer Relationship


A bank and its depositors have a legal relationship of debtor and creditor. A borrower has
a debtor-creditor relationship with the bank. This dual relationship allows a bank to seize
bank deposits under its right of setoff. Setoff gives the bank the right to deduct debts from a
customer’s account if it becomes necessary.
When there are sufficient funds in a customer’s account, a bank has a duty to honor his
checks. A bank may honor a check even if there are insufficient funds. This creates an
overdra� for which the customer is indebted to the bank. An overdra� is a loan made outside
the lending process. The bank is under no obligation to pay the overdra�.
Only the drawer has a right to stop payment on checks on his account. A drawer, drawee, or
holder in due course on a certified check cannot issue a stop payment. A stop-payment order
may be communicated to a bank by phone or in writing. When in writing a stop payment
may be in the form of a le�er to the bank or on a bank’s stop-payment form. A bank must
receive the stop-payment order in a time and manner that allows it to actually stop payment
before taking any other action on the item. An oral stop order is effective for only fourteen
calendar days unless confirmed in writing within that time. A wri�en stop order is binding
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Chapter One — Uniform Commercial Code

for only six months unless renewed in writing.


If a bank honors a check with a stop-payment order on it, the bank is liable to the drawer of
the check for any loss. The customer has the burden of establishing the amount of the loss,
therefore, the drawer must have a valid reason to stop payment. The bank cannot disclaim
its responsibility for not obeying stop-payment orders by having the customer sign an
agreement not to hold the bank responsible. Further, a bank is liable to its customers for
damages caused by a wrongful dishonor. The liability for a dishonor by mistake is limited
to the actual damages proved. This can include consequential damages. With wrongful
dishonor that is willful, punitive damages may be awarded along with the actual damages.
If a bank honors an altered check in good faith, then the customer‘s account can only be
charged for the amount intended. If the customer’s negligence led to the alteration and
the bank paid without being negligent, the bank can charge the customer’s account for the
altered amount. If a bank honors a check that a customer signed when it was incomplete and
then it is completed by another person, the customer’s account can be charged if the bank
pays in good faith and does not know that the completion was improper.
A bank may pay, but is not obligated to pay, a check that is over six months old (i.e., a stale
check) and may then charge the customer’s account. This six-month rule does not apply to
certified checks, which are an obligation of the certifying bank. In paying stale checks, a
bank must act in good faith and use ordinary care.

Responsibilities
Bank customers are under a duty to examine their bank statement and canceled checks
within a reasonable time a�er receipt. The customer should examine the canceled checks for
forgeries and alterations.
The bank does not have the right to charge a customer’s account for forged checks, but the
customer needs to give the bank prompt notification of a forged check. If the bank can prove
that it would suffer a loss due to the lack of prompt notification, then the customer will be
prevented from asserting the forgery or alteration against the bank. The bank cannot use the
defense of lateness in examining and reporting, if the customer can establish that the bank
was negligent.

Audit Focus Point


During a review of checking account-related forged endorsement fraud
losses, the auditor should be aware that the bank can be absolved of
liability if it can establish that (1) it paid the check in good faith, (2) it paid
the check in accordance with reasonable commercial standards.

Even if the bank was negligent, a customer cannot assert forgery of the drawer’s signature
or alteration on a check a�er one year from the time the canceled check and bank statement
were made available. For forged endorsements, the period is three years.

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Certified Bank Auditor Examination Review — Volume 7

The Bank Collection Process

Collections
A check, deposited or presented for payment in a bank other than the bank on which it
is drawn, must be sent to the drawee bank for payment. The collection process involves
sending the check through various banks that credit and debit accounts they maintain with
each other. Regional Federal Reserve Banks play an important role in this process.
The beginning of the collection process is the deposit of a check into a customer’s account.
The bank then provisionally credits the check. The check passes through the various
collecting banks, which themselves provisionally credit the amount of the prior bank. The
drawer’s account is debited when the check reaches the payor-drawee bank.
If the check is honored, se�lement is final. If the check is dishonored, the presenting bank
will reverse its provisional se�lement and charge the item back to the account of the next
prior collecting bank and so on back to the depository bank. The customer’s account is then
debited for the check which is returned to the customer. The collecting banks must return
the check or send notification of the fact by the midnight deadline. In most cases, a bank
must take proper action following receipt of a check, notice or payment by midnight the
next day.
A depositor has no right to withdraw against uncollected funds. In other words, the
depositor cannot draw against an item payable by another bank until the provisional
se�lement is final. However, even though a bank has no legal duty to do so, it may allow a
customer to draw against uncollected funds.
If a customer forgets to endorse a check, the depository bank may supply the missing
endorsement. The bank may endorse the item as deposited by a customer or credited to his
account. Therefore, it is not necessary to return items to customers for endorsement. On the
other hand, for someone who is not a customer, a bank cannot supply an endorsement.
Timing is an important factor in the process of check collection. A banking day is “that
part of any day of which a bank is open to the public for carrying on substantially all of
its banking functions.” In order to have time to process items, prove balances and make
necessary entries, banks establish a cutoff hour of 2 p.m. or later. Items received a�er the
cutoff hour are treated as being received on the next banking day.
A bank has the duty to use ordinary care in its collection operations or it may be liable to
the depositor for any loss or damage sustained. A bank must take proper action before the
midnight deadline following the receipt of a check, notice or payment. If a bank does not act
reasonably, it is liable. The exception to this is if the bank is excused by ma�ers beyond its
control, though excuses are usually difficult to establish.

Final Payment
On final payment, the bank is obligated on the item. Final payment occurs when:
• the item is paid in cash
• the item is se�led without reserving the right to revoke the se�lement
• the process of posting the item is complete
• a provisional se�lement is made and not revoked within the prescribed time
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Chapter One — Uniform Commercial Code

If a check drawn by a customer of a bank is deposited by another customer of the same bank
(i.e. where the depository bank is the payor bank) the item becomes final on the opening of
the second banking day following receipt of the item.
If a check is not paid, the bank is liable to the depositor if it:
• retains a check presented to it by another bank
• does not pay or return the check, or send notice of dishonor within the period of its
midnight deadline

SECTION 1.5: ARTICLE 5—LETTERS OF CREDIT

Purpose of Article 5
Le�ers of Credit, governed by Article 5 of the UCC, has undergone significant development
since the original dra�ing of that article. A le�er of credit is an idiosyncratic form of
undertaking that supports performance of an obligation incurred in a separate financial,
mercantile, or other transaction or arrangement. This section will make clear what a le�er of
credit is and precisely what circumstances Article 5 encompasses.

Article 5 Definitions
• le�er of credit—engagement by a bank or other person at the request of a customer
that the issuer (bank or other person) will honor dra�s or other demands for payment
upon compliance with the conditions specified in the credit (may either be revocable or
irrevocable—see below)
• documentary dra� or documentary demand for payment—honor conditioned upon
presentation of a document (i.e., a paper such as a document of title, security, invoice,
certificate, etc.)
• issuer—a bank or other person issuing a credit.
• beneficiary—person entitled under the terms of a credit to draw or demand payment
• advising bank—bank that gives notification of the issuance of a credit by another bank
• confirming bank—bank that engages either (1) that it will itself honor a credit already
issued by another bank, or (2) that such a credit will be honored by the issuer or a third
bank
• customer—buyer or other person who causes an issuer to issue a credit

Usage of Letters of Credit


Le�ers of credit include:
1. a credit issued by a bank if it requires a documentary dra� or documentary
demand for payment
2. a credit issued by a person other than a bank if it requires that the dra� or demand for
payment be accompanied by a document of title
3. a credit issued by a bank or other person that conspicuously states that it is a le�er of
credit or is conspicuously so entitled
A le�er of credit may be used alone instead of in conjunction with a documentary sale
of goods. It also may function as a medium of payment or as a back up against customer

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Certified Bank Auditor Examination Review — Volume 7

default on financial or other obligations. Le�ers of credit used as back up are called standby
le�ers of credit. They function like guarantees in that customer default triggers the issuer’s
obligation. A bank, insurance company, finance company or other similar organization may
issue le�ers of credit.
Formal requirements necessitate that a le�er of credit must be in writing and signed by
the issuer. Confirmations must also be in writing and signed by the confirming bank. Any
modifications of the terms of a le�er of credit or confirmation must be signed by the issuer
or confirming bank.
Typically, a le�er of credit is established in two ways, either with regards to the customer or
with regards to the beneficiary. When a le�er of credit is sent to the customer, or the le�er
of credit or an authorized wri�en advice of its issuance is sent to the beneficiary, it is the
former. When the beneficiary receives a le�er of credit or an authorized wri�en advice of its
issuance, it is the la�er. The customer and beneficiary may agree on another time of estab-
lishment of credit.

An Example
Le�ers of credit are used in both international and domestic trade, but they originated
in international trade. The following is an example of the use of a le�er of credit in inter-
national trade:
ABC Co., a California company, wants to buy cloth manufactured in France by the French
Co. ABC Co. sends a proposal to French Co. that says nothing about payment terms. French
Co. replies that it will not sell on open credit, and ABC Co. answers that it will not pay in
advance. The two companies agree to a documentary sale along with a le�er of credit.
ABC Co. would then obtain a le�er of credit from its bank. This le�er of credit would be
issued by the bank showing French Co. as beneficiary with authority to draw dra�s on the
issuing bank. Any irrevocable le�er of credit would commit the bank—the issuer—to pay a
dra� drawn by French Co.—the beneficiary—on proper presentment of the dra� and any
other required documents including the bill of lading. If the presented documents comply
with the conditions stated in the le�er of credit, then the issuing bank must pay.
With the documentary sale, French Co. puts the goods on board a carrier and receives a
negotiable bill of lading drawn to French Co. This bill of lading is the title to the goods.
French Co. then draws a sight dra� (a dra� that is payable on the bearer’s demand or on
proper presentment to the drawer) to its order showing the French Co. as the drawer and
directing ABC Co. to pay the dra� on presentment.
This dra� is then sent with the le�er of credit, the bill of lading and any other necessary
documents and mailed to French Co.’s agent (usually a correspondent bank) in California
with instructions to deliver the bill of lading properly endorsed if and only if the le�er of
credit issuer properly pays the sight dra�.

Types of Letters of Credit


There are two types of le�ers of credit: revocable and irrevocable. Once a revocable le�er of
credit is established, it can be modified or revoked by the issuer without notice to, or consent
by, the customer or the beneficiary. Once an irrevocable le�er of credit is established with the
26
Chapter One — Uniform Commercial Code

customer, it can only be modified or revoked with the customer’s or beneficiary’s consent.

Obligations of Issuers
An issuer has two obligations to its customer (1) good faith and (2) observance of any
general banking usage.
An issuer’s obligation does not include liability or responsibility:
• for performance of the underlying contract for sale or other transaction between the
customer and the beneficiary
• for any act or omission of any person other than itself; or for loss or destruction of a dra�,
demand or document in transit or in the possession of others
• based on knowledge or lack of knowledge of any usage of any particular trade
A beneficiary in transferring or presenting a documentary dra� or demand for payment
warrants to all interested parties that he has complied with the conditions required by the
le�er of credit.
An issuer must honor a dra� or demand for payment which complies with the terms of
the applicable le�er of credit. This applies regardless of whether the goods or documents
conform to the sale contract.
A bank that has been presented with a documentary dra� or demand for payment may
defer honor until the close of the third banking day following receipt of the documents.
Honor may be deferred even later if the presenter consents. If the bank does not honor the
dra� within the specified time period, it constitutes dishonor of the dra� or demand. On
dishonor, the bank must notify the presenter that it is holding the dra� or demand for return
to the presenter.
If an issuer wrongfully dishonors a dra� or demand for payment, the presenter has the
rights of a person in the position of a seller and may recover the face amount of the dra�
or demand plus any incidental damages. If an issuer wrongfully cancels or repudiates a
credit before presentment, the beneficiary can wait a reasonable time for performance by the
repudiating party. He can also resort to a remedy for breach of contract and/or suspend his
performance.

Transfers and Assignments


Le�ers of credit can be transferred or assigned only if they are designated as transferable or
assignable. Even if a credit is non-transferable or non-assignable, the beneficiary may assign
his right to proceeds. The right to proceeds may be assigned prior to performance of the
conditions of the le�er of credit but not a�er performance.

SECTION 1.6: ARTICLE 8—INVESTMENT SECURITIES

Purpose of Article 8
Article 8 of the UCC establishes the rights and duties of the parties involved with both
certificated and uncertificated investment securities. Article 8 sets forth the rules relating
to the transfer of the rights that constitute securities and the establishment of those rights
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Certified Bank Auditor Examination Review — Volume 7

against the issuer and other parties.

Article 8 Definitions
1. certificated security—a share, participation or other interest in the property of an
enterprise of the issuer; or an obligation of the issuer which is:
a. represented by an instrument issued in bearer or registered form
b. of a type commonly traded on securities exchanges or markets, or recognized in the
areas in which it is issued or dealt as a medium for investment
c. either one of a class or series; or by its terms divisible into a class or series of shares,
participation, interests or obligations
2. uncertificated security—a share, participation or other interest in property; an enterprise
of the issuer; or an obligation of the issuer which is:
a. not represented by an instrument and whose transfer is registered on books
maintained for that purpose by or on behalf of the issuer
b. of a type commonly traded on securities exchanges or markets
c. either one of a class or series; or by its terms divisible into a class or series of shares,
participation, interests or obligations
3. registered form (re: certificated security)—a certificated security is in registered form if:
a. it specifies a person entitled to the security or the rights it represents
b. its transfer may be registered on books maintained for that purpose by or on behalf of
the issuer
c. if the security so states
4. subsequent purchaser—a person who takes other than by original issue
5. clearing corporation—
a. a person that is registered as a clearing agency under the federal securities laws
b. a federal reserve bank
c. any other person that provides clearance of se�lement services with respect to
financial assets that would require it to register as a clearing agency under the federal
securities laws but for an exclusion or exemption from the registration requirement, if
its activities as a clearing corporation, including promulgation of rules, are subject to
regulation by a federal or state governmental authority
6. custodian bank—A bank or trust company that is supervised and examined by the
state or federal authority having supervision over banks and is acting as custodian for a
clearing corporation[B]Issuer Liability Rules

Definition of Issuer
When there are obligations on or defense to a security, the issuer is defined as the person
who:
• places or authorizes the placing of his name on a certificated security (1) to evidence that
it represents a share, participation, or other interest in property or an enterprise; or (2) to
evidence his duty to perform an obligation represented by the certificated security
• (1) creates shares, participations, or other interests in property or an enterprise; or (2)
undertakes obligations in which shares, participations, interests or obligations are
uncertificated securities

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Chapter One — Uniform Commercial Code

• creates fractional interests in his rights or property which are represented by certificated
securities
• becomes responsible for or acts in place of any other person described as an issuer above

Definition of Guarantor
A guarantor is an issuer to the extent of his guarantee. With regards to registration or
transfer, pledge or release; the issuer is the person on whose behalf transfer books are
maintained.

Rules for an Action


The following rules apply in an action brought against the issuer of a security to enforce a
right or interest that is part of the security:
1. Each signature on a certificated security (in a necessary endorsement, on an initial
transaction statement or on an instruction) is admi�ed unless specifically denied in the
initial pleading by the issuer.
2. If the effectiveness of a signature is at issue, the burden of establishing effectiveness is
on the party claiming under the signature. The signature is presumed to be genuine or
authorized.
3. If signatures on a certificated security are admi�ed or established, presentation of the
security entitles the holder to recover on it unless the defendant establishes a defense or a
defect related to the validity of the security.
4. If signatures on an initial transaction statement are admi�ed or established, any facts
presented in the statement are presumed to be true at the time it was issued. The issuer is
free to show that later events changed the stated facts.
5. A�er it is shown that a defense or defect exists, the plaintiff must establish the fact that the
defense or defect is ineffective against him.

State Law
The law of the state in which the issuer is organized determines the rights and obligations
of the issuer with respect to securities. The rights and interests related to securities of the
same issue are considered fungible. Therefore, a person obligated to transfer securities does
not have to transfer a specific instrument but may select any security of the proper issue,
whether it is in bearer form or appropriately registered or endorsed. Another alternative is
that the person may transfer an uncertificated security of the same issue.

Issuer’s Liens
A lien on a certificated security in favor of the issuer is valid against the purchaser only
if the issuer’s right to the lien is noted conspicuously on the security. If the security is
uncertificated, a notation of the issuer’s right to the lien must be included in the initial
transaction statement sent to the purchaser. If the purchaser’s interest is received other than
by registration of transfer, pledge or release; the initial transaction statement must be sent to
the registered owner or to the registered pledgee.

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Terms of Securities
If a security is certificated, the terms of the security are stated on the security. With an
uncertificated security, the terms of the security are included in the initial transaction
statement sent to a purchaser. If the purchaser transfers, pledges or releases the
uncertificated security; the transferee may obtain the initial transaction statement from the
registered owner or registered pledgee.
A restriction on a certificated security should be conspicuously noted on the security.
A restriction on an uncertificated security should be included in the initial transaction
statement. If an issuer does not have a restriction in any of these manners, the restriction is
ineffective against a person without actual knowledge of it.
An unauthorized signature on a certificated security or initial transaction statement is
enforceable by a purchaser for value only if the purchaser does not know that the signer
does not have the authority. If a certificated security or initial transaction statement includes
authorized signatures but is incomplete in any other respect, any person may complete it
by filling in the blanks. Even if the blanks are incorrectly completed, the security is enforce-
able by a purchaser for value who had no notice of the incorrectness. In other words, a
certificated security may be endorsed in blank and an endorsement may transfer only part
of a certificated security. An altered certificated security or initial transaction statement is
enforceable, but only according to its original terms.
A security may be endorsed in blank or special. A blank endorsement includes an
endorsement to bearer. A special endorsement specifies to whom the security is to be
transferred or who has the power to transfer it. A blank endorsement may be converted into
a special endorsement. An endorsement may transfer only part of a certificated security.
However, endorsement of a certificated security does not constitute a transfer until its
delivery. If the endorsement is on a separate document, both the document and certificated
security must be delivered.
A person who signs a certificated security or initial transaction statement as authenticating
trustee, registrar, transfer agent, or the like warrants to a purchaser for value that:
• the certificated security or initial transaction statement is genuine
• the signer's participation in the issue or registration of the transfer, pledge or release of
the security is both within his capacity and within his scope of authority as granted by the
issuer
• the security is in the form and within the amount the issuer is authorized to issue
Unless a purchaser's rights are limited, he will on transfer of a security, acquire the same
rights as the transferor (or those rights which the transferor had authority to convey). A
purchaser of a limited interest acquires rights only to the extent of the interest transferred.

Purchaser Liability Rules


If the buyer does not pay the sale contract price the seller may recover the price of:
• certificated securities accepted by the buyer
• uncertificated securities that have been transferred to the buyer or a person designated by
the buyer

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Chapter One — Uniform Commercial Code

• other securities if efforts at their resale would be unduly burdensome or there is no readily
available market for their resale
When presenting a certificated security for registration of transfer, for payment or for
exchange, a person warrants that he is entitled to that registration, payment or exchange. A
purchaser for value and without notice of adverse claims who receives a new, reissued or
reregistered security warrants that he has no knowledge of any unauthorized signatures in a
necessary endorsement.
A person who transfers a certificated security to a purchaser for value warrants several
things:
• The transfer is effective and rightful.
• The security is genuine and has not been materially altered.
• He has no knowledge of a fact which might impair the validity of the security.
A purchaser who receives a certificated security in registered form but without a necessary
endorsement may become a bona fide purchaser only when the endorsement is supplied.
Against the transferor, the transfer is complete on delivery and the purchaser has an
enforceable right to have the necessary endorsement supplied.

Purchaser Legal Rights


Legal rights in a security transfer to the purchaser are established when:
• the purchaser or his representative acquires possession of a certificated security
• the transfer, pledge or release of an uncertificated security is registered to the purchaser or
his representative
• the purchaser's financial intermediary obtains possession of a certificated security specially
endorsed to or issued in the name of the purchaser
• the purchaser's financial intermediary sends him confirmation of the purchase and also
identifies the security as belonging to the purchaser by a book entry or otherwise
• at the time a third person acknowledges that he holds a security for delivery to the
purchaser
• when appropriate entries regarding the purchase are made on the books of a clearing
corporation

Rules for Contracts for the Sale of Securities


A contract for the sale of securities is enforceable if:
• there is a writing signed by the party against whom enforcement is sought indicating that a
contract has been made for the sale of a stated quantity of described securities at a defined
or stated price
• delivery or transfer has occurred and the issuer does not send a wri�en objection within ten
days
• the party against whom endorsement is sought admits in court that a contract was made for
the sale of a stated quantity of described securities

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SECTION 1.7: ARTICLE 9—SECURED TRANSACTIONS

Article 9 Scope
Article 9 applies to secured transactions (and excludes coverage of landlords’ liens, wage
assignments, transfers of insurance policies and artisans’ liens). A secured transaction is
a transaction in which a borrower or a buyer provides security in the form of personal
property to a lender or a seller that an obligation will be fulfilled. The simplest type of
secured transaction was historically referred to as a pledge. In a pledge transaction, a
borrower gives the physical possession of his property (i.e., diamond ring) to a lender as
security for a loan. If the loan is not repaid, the lender can sell the property to satisfy the
obligation or debt.
A pledge is o�en unsatisfactory as a security arrangement because it requires the physical
possession of the property to be transferred to the creditor. As a result of this inconvenience,
security arrangements have developed that allow the debtor to retain the physical
possession and use of the property. Such security arrangements are sometimes referred to as
cha�el mortgages, conditional sales contracts, factors’ liens, and so forth. The UCC refers to
all these security devices as security interests.

Definitions
Certain terminology must be defined in the area of secured transactions.
security interest—an interest in personal property or fixtures that secures payment or
performance of an obligation
secured party—a lender, seller or other person in whose favor there is a security interest
debtor—the party who owes an obligation and is providing the security
collateral—the personal property in which a security interest exists

Types of Collateral
Collateral may be classified three ways: as tangible collateral (physical property or goods), as
semi-intangible collateral (it has physical existence but is simply representative of a contractual
obligation, i.e., negotiable instruments), and as purely intangible collateral (i.e., accounts
receivable).

Tangible Collateral
1. consumer goods—those goods bought primarily for personal, family or household
purposes
2. equipment—those goods that are used or purchased primarily for use in a business, in
farming, in a profession, or by a non-profit organization or government agency (serves as
a catchall for all other goods which defy classification)
3. inventory—goods that a person holds for sale or lease and that are to be furnished under
a contract of service, including raw materials, works-in-process, finished goods, and
materials used or consumed in a business

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Chapter One — Uniform Commercial Code

(The primary test to be applied in the determination of whether goods are inventory is
whether the goods are held primarily for immediate or ultimate sale or lease. A security
interest in inventory automatically covers a�er-acquired inventory.)
4. farm products—include crops and livestock, supplies used or produced in farming
operations, and the products of crops or livestock in their unmanufactured state (co�on,
milk, wool, etc.) if such items are in the possession of a debtor who is engaged in farming
operations
(Goods cease to be farm products and therefore must be reclassified when they are no
longer in the farmer’s possession or when they have been subjected to a manufacturing
process.)

Semi-intangible Collateral
• documents of title—documents that in the regular course of business or financing are
treated as sufficient evidence that the person in possession of the document is entitled
to receive, hold and dispose of the document and the goods it covers—including bills of
lading and warehouse receipts
• cha�el paper—writing or writings that provide evidence of both an obligation to pay
money and a security interest in or a lease of specific goods; a security agreement
• instruments—negotiable instruments, securities such as stocks and bonds, and any other
writing that evidences a right to the payment of money and is not itself a lease or security
agreement; may be negotiable dra�s, checks, certificates of deposit and promissory notes
All of these types of paper are in writing and are representative of obligations and rights.

Intangible Collateral
• accounts—any right to payment for goods sold or leased or for services rendered, whether
or not earned by performance.
• general intangibles—goodwill, patents and copyrights
The difference between intangible and semi-intangible collateral is that intangible collateral
is not represented by an indispensable writing.

Agreement and Attachment


The creation of a valid security interest between the debtor and the secured party requires
an agreement and a�achment to the collateral. The security agreement is required to be in
writing, unless the arrangement is a possessory one and the secured party is in possession of
the collateral. The agreement must be signed by the debtor and must contain a description
that reasonably identifies the collateral. A�achment is the creation of a security interest in
property occurring when the debtor agrees to the security, receives value from the secured
party and obtains rights in the collateral.

Elements for the A�achment of a Security Interest


• The debtor possesses rights in the collateral.
• The debtor has authenticated a security agreement or the secured party
has possession of the collateral.
• There must be an obligation for value to be performed or given by the
creditor.

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To be enforceable, a security interest must a�ach to the collateral. Three elements must be
present for the a�achment of a security interest. These events may occur in any sequence.
1. the debtor must possess rights in the collateral
2. the secured party must have given value
3. there must be an agreement between the debtor and the secured party that there should
be a security interest.

Value and After-Acquired Property


Value means that a secured party has provided the debtor with any consideration adequate
to support a simple contract. A�er-acquired property is a concept involved in securities. The
security agreement also may provide that certain property acquired by the debtor at any
later time will become collateral. This property is referred to as a�er-acquired property.
An a�er-acquired property clause severely binds the debtor. Therefore, the code places
certain limitations on the effect of a�er-acquired property clauses in relation to crops and to
consumer goods.
No security interest can be a�ached under an a�er-acquired property clause to crops that
become such more than one year a�er the execution of the security agreement. This is also
the case with consumer goods that are given as additional security unless the consumer
obtains the goods within ten days a�er the secured party gives value.

Methods of Perfection
A creditor with a perfected security interest has priority over the claims of a bankruptcy
trustee, unsecured securities and certain other transferees. Perfection normally involves
filing a financing statement (see definition below) that puts the world on notice that the
secured party has a security interest in the property.

Methods of Perfection
1. taking possession of the collateral
2. filing a financing statement
3. a�achment of the security interest

The first and simplest method of providing notice of a security interest is for the secured
party to take possession of the collateral. A second method of perfection is the filing of a
financing statement. This filing must occur at the appropriate public office designated for
that purpose.
A financing statement is a document containing the addresses of both the debtor and the
secured party. The financing statement also contains a description of the collateral. However
it must be remembered that a financing statement is not a substitute for the security
agreement. The purpose of filing a financing statement is to provide notice that the secured
party who filed it may have a secured interest in the collateral.
Unless the financing statement contains an expiration date of a shorter duration, the filing

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Chapter One — Uniform Commercial Code

is effective for a five-year period from the date of filing. A continuation statement signed by
the secured party may extend the effectiveness for an additional five years. The code also
provides for the filing of a termination statement to clear the public record when the secured
party is no longer entitled to a security interest.
The third method of perfection requires only the a�achment of the security interest without
any further action being required. This is o�en referred to as perfection by a�achment or
automatic perfection.

Situations resulting in automatic perfection:


1. a purchase-money security interest in consumer goods
2. an assignment of accounts or payment of intangibles which does not by itself or in
conjunction with other assignments transfer a significant part of the assignor’s similar
accounts
3. a sale of a payment intangible
4. a sale of a promissory note.
The full list of automatic perfection situations is found in 9-309. Perfection by a�achment
limits the protection furnished to the secured party. The secured party is protected against
the claims of creditors of the debtor and from others to whom the consumer or farmer
debtor may give a security interest in the collateral.
However, the secured party is not provided protection against the rights of a consumer or
farmer who is a good-faith purchaser from the debtor. A good-faith purchaser is one who buys
the collateral and is unaware of the existence of any security interest in the property.

Perfection With and Without Filing


Under 9-312(a), a security interest in instruments may be perfected by filing. This rule
represents an important change from former provisions of Article 9, under which possession
was the only method for perfection in the long term.
A security interest in certificated securities, negotiable documents or instruments is
perfected without filing (or taking possession for a period of 20 days) if the secured
party makes available to the debtor the goods (or documents representing the goods)
for the purposes of ultimate sale or exchange; for loading, unloading, storing, shipping,
manufacturing, processing; or for otherwise dealing with them in a manner preliminary to
their sale or exchange.
A perfected security interest in a certificated security or instrument remains perfected for
20 days without filing if the secured party delivers the security certificate or instrument
to the debtor for the purpose of ultimate sale or exchange; or for presentation, collection,
enforcement, renewal or registration of transfer. A�er these 20-day periods end, compliance
with ordinary provisions of Article 9 apply.
For several reasons, it may be necessary for a secured party with a possessory security
interest to temporarily release possession of the collateral to the debtor. For such temporary
releases, the requirement of filing is too cumbersome. The UCC provides relief by stating
that a security interest remains perfected for a period of 21 days without filing where a

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Certified Bank Auditor Examination Review — Volume 7

secured party having a perfected security interest releases the collateral to the debtor. This
provision applies to instruments, negotiable documents and goods in the hands of a bailee
that are not covered by a negotiable document of title.
Only when the goods (or documents representing the goods) are released to the debtor for
ultimate sale or exchange; for purposes such as storing, shipping and manufacturing; or for
some other similar purpose will this provision apply. In the situation of a temporary release
of an instrument to the debtor, the purpose must be to allow the debtor to present, collect
or renew the instrument; to obtain registration of a transfer; or to make an ultimate sale or
exchange.
A secured party who has not perfected his security interest has a very limited protection
against third parties. Creditors must comply carefully with the statutes if the desired
protection is to be obtained. An unperfected security interest will have priority over third
parties who acquire the property with prior knowledge. However, a buyer in the ordinary
course of business will take the property free of security interests created by the seller in the
seller’s inventory.

Priority
The following priority rules apply for perfection in a variety of situations.
• If the conflicting interests are perfected by filing, the first to file will prevail, regardless of
the order of a�achment
• Unless both interests are perfected by filing, the first to be perfected will prevail regardless
of the order of a�achment
• If neither of the security interests is perfected, priority will be given to the first party to
a�ach
• When perfection is by possession, the secured party is protected against all third parties as
long as possession is maintained

Rights and Duties


The secured party has certain rights and duties in a secured transaction. These rights and
duties are those established in the security agreement and those provided by the Code. A
secured party who has a possessory security interest is required to exercise reasonable care
of the collateral. Unless the security agreement specifies otherwise, all reasonable expenses
related to the collateral are the responsibility of the debtor and are secured by the collateral.
The burden of accidental loss or damage is placed on the debtor except for the amount
covered by insurance. The secured party may also repledge the collateral (use the collateral
as security in his own financing), provided the repledge does not impair the debtor’s right to
redemption.
The debtor may exercise certain privileges without violating the security agreement: He
may collect or compromise accounts receivable or cha�el paper, and he may accept the
return of goods or make repossessions. The debtor also may use, commingle or dispose of
the proceeds. However, these privileges may be legally restricted by the provisions of the
security agreement.

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Chapter One — Uniform Commercial Code

Remedies
The debtor defaults under the security agreement when he fails to satisfy or pay the
obligation that is secured or when he otherwise breaches the security agreement. The
remedies available to the secured party are established by the terms of the security
agreement and by the provisions contained in the code.
The basic remedy for the secured party is to repossess the collateral and dispose of it. The
secured party may also retain the collateral as satisfaction of the debt and not sell it. The
secured party may take possession of the property without judicial process provided he can
do so without breaching the peace. If the collateral is accounts, cha�el paper, instruments or
general intangibles; the code provides that the secured party may collect any amounts that
become due on the collateral.

Disposition
Under 9-610, a�er a default, a secured party may sell, lease, license or otherwise dispose of
any or all of the collateral in its present condition or following any commercially reasonable
preparation or processing.
Every aspect of a disposition of collateral, including the method, manner, time, place and
other terms, must be commercially reasonable. If commercially reasonable, a secured party
may dispose of collateral by public or private proceedings; by one or more contracts; as a
unit or in parcels; and at any time and place and on any terms.
This version of Article 9 specifies no time period for the disposition of collateral. This is
to foster the Code’s policy to encourage private dispositions through regular commercial
channels. Remember, however, that every aspect of the disposition must be reasonable and
so an indefinite retention of the collateral where there is no good reason for such retention
may be viewed unfavorably. Such action may not be deemed commercially reasonable.

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Practice Challenge Questions


Directions: Circle T if the answer is true, or F if the answer is false.
1. T F The primary purpose of the UCC was to collect all aspects of commercial
transactions into one body of law.

2. T F The provisions of the UCC govern the terms of relevant agreements and may not
be varied in any way by agreement of the contracting parties.

3. T F Quantity is the only term that, if completely omitted, cannot be supplemented by


the provisions of Article 2.

4. T F It is always true that the title acquired by a purchaser of goods is only as good as
the title of the transferor.

5. T F Goods include the unborn young of animals, growing crops and standing timber.

6. T F Commercial paper consists of two basic types of instruments: drafts and bearer
bonds.

7. T F Duly authorized acts by an agent will bind the principal. An agent who fails to
name his principal or who lacks the authority to bind his principal will be liable to third
parties. An agent will also be liable if he fails to exhibit his representative capacity.

8. T F The characteristics of a non-negotiable instrument are (1) it is not payable to


order or bearer, and (2) it is payable on the occurrence of an uncertain event.

9. T F A bank and its depositors have a legal relationship of debtor and creditor. A
borrower has a debtor-creditor relationship with the bank.

10. T F The beginning of the collection process is the writing of a check by a


customer.

11. T F A letter of credit may function as a medium of payment or as a back up against


customer default on financial or other obligations.

12. T F An issuer is free to dishonor a draft or demand for payment which meets all of its
terms or conditions.

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Chapter One — Uniform Commercial Code

13. T F A term may be made conspicuous by printing a heading in capital letter or


printing language in the body of a form in a larger or contrasting type or color.

14. T F A security interest is an interest in personal property or fixtures which secures


payment or performance of an obligation.

15. T F Perfection by attachment requires that the issuer of a security file with state
authorities within 10 days.

16. T F The purpose of filing a financing statement is to provide notice that the secured
party who filed it may have a secured interest in the collateral.

17. T F A contract for the sale of securities is enforceable if there is a writing signed by
the party against whom enforcement is sought indicating that a contract has been made
for the sale of a stated quantity of described securities at a defined or stated price.

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Directions: Circle the letter of the answer that most accurately completes the sentence.
1. Under Article 5, what are the two obligations an issuer has to its customer?
a. general commercial reasonableness and general banking usage
b. good faith and common sense
c. standards of the uniform banking act and SEC filings
d. good faith and observance of any general banking usage

2. If the security is uncertificated, a _____ must be included in the initial transaction


statement sent to the purchaser.
a. receipt
b. notation of the issuer’s right to the lien
c. copy of the terms and conditions
d. copy of the articles of incorporation

3. An issuer’s lien is_____.


a. a certificated security on which the issuer’s right to the lien is
conspicuously noted
b. a lien in which the issuer is granted double recovery rights in the event
of a default
c. a lien where the issuer is forced to accept a partial interest in the
security, but cannot seek legal recourse
d. a lien where the issuer need not note his right to the lien in any way

4. Under 9-610, after a default, a secured party may sell, lease, license or otherwise
dispose of any or all of the collateral in its present condition or following any _____
preparation or processing.
a. commercially reasonable
b. appropriate
c. legally permissible
d. pre-approved

5. In a typical situation, a secured party may _____ _____ as a remedy against a debtor
who fails to pay or satisfy his obligation.
a. adversely possess the collateral and sell it back
b. repossess the collateral and dispose of it
c. charge a double fee to the debtor and report him
d. breach the peace and take other unrelated items to satisfy the debt

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Chapter One — Uniform Commercial Code

6. The UCC permits notice of a fact when a party has (1) ______(2) received notice or
notification of the fact, or (3) from all the facts and circumstances known to the person
at the time in question, the party has reason to know the fact.
a. actual knowledge
b. constructive knowledge
c. a strong suspicion
d. heard a rumor

7. When interpreting a contract, express terms, course of dealing and usage of trade
should be interpreted as consistent with each other where _____. Where this is not
possible, the express terms control both course of dealing and usage of trade.
a. logical
b. reasonable
c. unreasonable
d. commercially prudent

8. Before payment or acceptance of goods, the buyer has the right to _____ the goods at
a reasonable time and place and in any reasonable manner.
a. seize
b. destroy
c. inspect
d. scrap

9. Revocation can occur only if the non-conformity “_______ the value to the buyer.” A
buyer who revokes acceptance is placed in the same position relative to the goods as if
he had rejected them in the first place.
a. completely impairs
b. substantially impairs
c. partially impairs
d. negligibly impairs

10. The UCC provides that any _____ endorsement, except that of the bank’s immediate
transferor, may be disregarded by an intermediary or payor bank that is not a depository
bank..
a. restrictive
b. negotiated
c. commercial
d. qualified

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Certified Bank Auditor Examination Review — Volume 7

11. In a contract action, a(n) _____ defense is an ordinary defense that the maker or drawer
of a negotiable instrument is precluded from raising against a person who has the rights
of a holder in due course.
a. insanity
b. real
c. limited
d. personal

12. If a check drawn by a customer of a bank is deposited by another customer of the same
bank (i.e., the depository bank is the payor bank), then the item becomes final on the
opening of the _____ banking day following receipt of the item.
a. first
b. second
c. third
d. fourth

Write complete and thoughtful answers to the following questions.


1. Define commercial paper and explain its uses.

2. List the four requirements of a negotiable instrument.

3. List the different types of warranties supplied by Article 2, and briefly explain their
significance.

4. Explain the essential elements for a sales contract.

5. What are the common methods for breaching a contract?

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Chapter One — Uniform Commercial Code

6. Define protest.

7. What is a Holder in Due Course?

8. Define depository bank.

9. Define letter of credit below:

10. List and describe the various types of letters of credit

11. In the space provided below, list three of the rules that apply in an action brought
against the issuer of a security to enforce a right or interest that is part of a security.

12. List the items that a seller of an investment security may recover if the buyer does not
pay the sale contract price.

13. Define secured transaction.

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Certified Bank Auditor Examination Review — Volume 7

14. Define the term secured party.

15. List the three elements for the attachment of a security interest.

Matching
Read the directions for each matching exercise.
1. Below is a list of collateral terms and collateral descriptions. Match the letter and the
definition to the correct term by placing the letter in the space provided.
Terms Description
1. Consumer goods service _____ a. Collateral that a person holds for sale or lease and
2. Inventory _____ that are to be furnished under a contract of service

3. Document of title _____ b. Collateral that provides evidence of an obligation to


pay money and a security interest in or a lease of
4. Chattel paper _____ specific goods
5. Instruments _____ c. Collateral bought primarily for personal, family or
household use.
d. negotiable collateral that evidences a right to the
payment of money and is not itself a lease or security
agreement.
e. Used in the regular course of business or financing
and treated as evidence that the possessor is
entitled to the goods

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Chapter One — Uniform Commercial Code

2. Please indicate if the particular remedy is for a seller or a buyer. Indicate seller by
placing an “S” in the blank, and buyer by placing a “B” in the blank.
a._____ sue for the actual price of goods
b._____ reject the contract
c._____ cover and recover damages
d._____ cancel the contract
e._____ recover damages for non-acceptance
f._____ resell the goods and recover damages
g._____ recover damages for non-delivery
h._____ sue to get the goods

3. From the list below, indicate which items are the responsibilities of banks in the bank
collection and deposit process by placing a “B” in the blank, and indicate which items
are responsibilities of customers by putting a “C” in the blank.
a. _____ examine bank statements
b. _____ honor checks
c. _____ examine cancelled checks
d. _____ honor stop payments

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Chapter Two — General Commercial Law

Chapter Two

General Commercial Law


Scope: Volume 7 constitutes Business Law, which makes up 30 to 40% of
Part 4 of the CBA exam. Volume 8 makes up Economics, which make up
15 to 25% of Part 4 of the CBA exam. Volume 9 addresses Management
Issues, which makes up 25 to 35% of Part 4 of the CBA exam

Chapter Topics
The following topics are covered in this chapter:
2.1 Wills, estates, and trusts
2.2 Insurance
2.3 Guaranty and suretyship
2.4 Partnerships
2.5 Agency
2.6 Contracts
2.7 Bankruptcy
2.8 Antitrust

Chapter Objectives
A�er completing this chapter, you will be able to:
• describe the validity requirements for a will and changes to a will
• describe the roles and responsibilities of each of the parties involved in a will or trust
• explain the overall estate administration process
• identify cases in which a will or trust is fixed and irrevocable as well as situations in which
a will or trust can be modified or revoked
• describe the three different types of property ownership
• identify personal, business or property relationships which permit a person to take out an
insurance policy
• describe the different types of insurance
• identify typical insurance policy clauses and limitations
• understand the insurance company’s legal rights to recover from those who cause a loss
• identify circumstances concerning a voided policy or a lapsed policy
• comprehend the relationship between parties in a guaranty/surety agreement and different
types of agreements
• describe the guarantor’s rights and responsibilities
• identify defenses that a guarantor can use to defeat a creditor’s claims
• identify the different kinds of partnerships and contents of agreements
• identify the rights, duties and powers of partners

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Certified Bank Auditor Examination Review — Volume 7

• describe the steps in extinguishing a partnership: dissolution, winding-up and termination.


• identify the different kinds of agents and principals and related duties
• describe agent’s authorities and liabilities
• identify tort liabilities and the liabilities of disclosed and undisclosed principals
• explain the termination of an agency relationship
• identify different types of contracts and the four required elements of a valid contract
• identify the circumstances under which a contract can be voided or breached
• describe the roles of third parties in an existing contract
• identify different chapters or types of bankruptcy proceedings
• identify property and debts that are exempted in bankruptcy
• describe the role of the bankruptcy trustee and his duties and powers
• explain the prioritization and payment (or discharge) of creditor’s claims
• identify different acts that have been passed by Congress in the area of antitrust

SECTION 2.1: WILLS, ESTATES AND TRUSTS

Scope
As parties manage their financial affairs, they make provisions for the future nonsale
transfer of their property to others. Wills and trusts are used to direct a party’s property to
other people upon certain events—most commonly the death of the party making the will or
trust. In some cases, the provisions for future transfer of property from one party to another
are completely fixed and nonrevocable. In other cases, the future transfer of property is
dependent on contingencies and therefore could be delayed or even canceled.

Wills, Estates and Trusts—Definitions


• will—A will directs the disposition of an individual’s property upon his death.
• intestate—An individual who dies without a will is said to have died intestate.
• testator/testatrix—An individual who makes a will is commonly referred to as a testator/
testatrix.
• executor/executrix—The personal representative of a testator is called an executor/
executrix.
• administrator/administratrix—The personal representative of an individual who dies
intestate is called an administrator/administratrix.
• guardian—The personal representative of a living person who is a ward (generally a child)
is referred to as a guardian.
• conservator—The personal representative of a living but mentally incompetent person is a
conservator.
• community property—Community property states have statutes in which property rights
of married people are subject to special rules, which have particular implications upon
death or divorce.
• trust—A trust directs the management, use and disposition of property of the individual
who makes the trust—trusts can function before and a�er the death of the maker.
• se�lor or trustor—An individual who makes a trust is commonly referred to as a se�lor or
a trustor.

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Chapter Two — General Commercial Law

• trustee—The individual who manages the property in the trust is called a trustee.
• beneficiaries—The individuals who use or receive the property in the trust are called
beneficiaries.

Wills

Executing a Will
A will is a document that signifies an individual’s intention concerning disposition of his
property on death. The will also may designate the deceased’s personal representative and
may make provisions for the payment of taxes. The legal requirements for a valid will vary
from state to state, however, some generalities do exist. For a will to be deemed valid:
• It must have been executed by a person possessing testamentary capacity.
Note: This includes a minimum age requirement and the minimum capacity to understand
the nature and the plan involved in creating the will. This also includes the absence of
undue influence, (defined as influence that overpowers the mind of the testator and
deprives him of his free agency in the execution of his will).
• It must be signed either by the testator or by someone in his presence and at his direction.
Note: Oral wills are not recognized in many states.
• It must be a�ested in the presence of the testator by two or more credible witnesses.
Note: A credible witness is one who is competent to testify to support the will.
In most states an individual who is an interested party (i.e., who receives property under the
will) is not allowed to receive more property as a result of the will than he would receive if
no will existed. A witness is not allowed to profit on—or gain from—any property as a result
of the will.
An otherwise properly executed will may be challenged on the grounds noted above as well
as other more technical grounds.

Revocation of a Will
Wills may be revoked by several methods. Among the prevalent methods of revocation are
physical destruction of the will, creating a will that revokes a prior one, making a later will
inconsistent with a prior one, marriage and divorce. In several states, divorce only revokes
the will to the extent of bequests or devises to the former spouse. Therefore, it is imperative
that, upon a marriage or divorce, state law be consulted concerning the effect on the
testator’s prior will.
Finally, state laws generally prohibit partial revocation of a will except by a duly signed
and a�ested instrument. Substitutions, additions, alterations, deletions and interlineations
on the face of the will are, therefore, ineffective, and it shall be enforced as originally
executed. In most states, a will that is totally revoked by any method can be revived only by
the re-execution of the will. Another option is through a wri�en instrument declaring the
revival, but it must be executed in the same manner as a new will.

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Certified Bank Auditor Examination Review — Volume 7

Estates

Settling an Estate
The statutes of the individual states determine the steps to be taken by the executor or
administrator in the se�lement of an estate. A petition informing the court of the death of the
deceased and appending a copy of the will (if there is one) is normally required to be filed.
The court then sets a date for a hearing at which time the will may be presented for probate.
If an individual dies intestate, the petition should be signed by someone entitled under the
laws to serve as administrator of the estate. All interested parties are entitled to notice of the
time and place of the hearing.
At the hearing, evidence is requested by the court and normally supplied by the a�esting
witness as to the proper execution of the will. If there is a chance that someone is going to
contest the will, it is usually happens at this point in the process. If the court deems that the
will was properly executed, it is then admi�ed to probate, and an executor (chosen by the
testator) is appointed. If no will exists and the individual entitled to administer the will so
requests, then the court itself can appoint the administrator. The executor or administrator
then files an oath of office and an appropriate bond to guarantee the faithful discharge of the
duties of personal representative.
A�er the appointment of the executor or administrator, public notice of the death must be
provided to his creditors through public newspapers. The executor or administrator then
collects all of the deceased’s personal property, takes inventory and files the inventory listing
with the court.

Administering the Estate: Distributing the property


During the administration period, the executor or administrator must file all required tax
forms. The personal representative must also a�empt to collect all outstanding receivables
of the deceased. A�er the payment of all outstanding debts and taxes, the representative can
then distribute the remaining property.
If the deceased had a valid will, the executor must follow its direction. If the deceased
died intestate, the court determines who are the legal heirs as of the date of death and the
administrator of the estate distributes the property accordingly. In most states, these heirs
are the deceased’s spouse and children, if any.
It is important for the executor of an estate to know if the deceased ever lived in a
community property state because this could affect the distribution of property. In
community property states, the laws regarding spousal property rights can actually override
and therefore change a will’s distribution of property. Even if the deceased did not live in a
community property state at the time of death, community property law may still apply to
real estate located in that state. In this case, the laws of that state may affect the deceased’s
property ownership rights and could restrict or even prohibit the transfer the property.
State law generally provides a spouse certain rights that cannot be denied by a will. The
right to support during the administration of the will is one of these rights. Also, a majority
of state laws allow the spouse to renounce a will and to take a statutory share in lieu of
its provisions. This is commonly called the Widow’s Right of Election. In these states, one’s

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spouse can never be completely disinherited.

Property Ownership Rights


The three methods by which two or more people may own property together are tenancy
in common, joint tenancy and tenancy by the entirety. The first two methods are applicable to
both real and personal property. Tenancy by the entirety applies only to real estate held by
spouses. Some states have modified these methods, so each state’s law should be consulted.

Tenancy in Common
If a party to a tenancy in common dies, his share of the property passes to his estate and is
distributed by either the executor of the will or the administrator of the estate. If a party to
property held in joint tenancy dies, the deceased party’s interest automatically passes to the
surviving joint owner(s). With joint tenancy, title passes to the survivor free of the claims of
anyone else except for any taxes due and does not pass through the estate administration
process.

Joint Tenancy
For two or more parties to establish valid joint tenancy of property, the law requires:
1. unity of time—The joint tenants’ ownership must be created at the same time.
2. unity of title—The joint tenants must have the same estate created in the same manner.
3. unity of interest—Each owner must have equal shares of the property.
4. unity of possession—Each owner has the right to possess all of the real estate subject to
the owner’s rights of possession.

Tenancy by the Entirety


Tenancy by the entirety can exist only between a husband and wife with regards to real
estate. Tenancy by the entirety can be terminated only by divorce, joint transfer to a third
party, or a transfer by one spouse to the other.

Devises and Bequests of Property


A devise is a gi� by will of real estate. A bequest is a gi� by will of personal property. Devises
and bequests are further subdivided into specific, general and residuary. A gi� of particular
property so identified as to distinguish it from other property is a specific legacy or specific
devise. A general legacy may be satisfied by the delivery of any property of the general type
described. A residuary gi� is a gi� that includes all the personal property that is not included
in the specific or general bequests or devises. This is depicted below.
Specific legacy
“my home at 123 Fake Street…”
General legacy
Devises and Bequests
“one half of my coin collection…”
Residuary gift
“one quarter of my estate…”

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Trusts

Types of Trusts
The law recognizes four types of trusts: express private trust, charitable trust, resulting
trust and constructive trust. However when used alone the term trust generally refers to an
express private trust.

Express Private Trusts


An express private trust is a fiduciary relationship with respect to property. The individual
who creates the trust is referred to as the se�lor, creator or trustor. The se�lor’s intention to
create a trust must be clear. A trust involving real estate must be in writing.
Once the trust is effective, the person having legal title to the property is the trustee. The
trustee possesses the title to the property and manages the property for the benefit of
another person referred to as the beneficiary. The trustee is under an absolute obligation to
act solely for the good of the beneficiary.
There are two types of express private trusts: an inter vivos or living trust—a trust created by
a transfer of property during one’s lifetime—and a testamentary trust—a trust that transfers
property on one’s death.
Any property that has the capacity to be transferred may be held in trust. Property transfer
is immediate and the beneficiary gets final complete legal title to the property (i.e., the
beneficiary as defined in the trust document.) On the other hand, property transfer can be
a trust-defined period of usage. This allows a trust beneficiary to use and/or collect income
from the property for a period of time while the property title stays in the trust. This is
then coupled with a later transfer of the property title. A�er the period of usage is over the
property title is assigned to the designated trust beneficiary (either the same or a different
beneficiary). In this way, a trust may have more than one beneficiary and may provide for
successive trustees or beneficiaries.
For example, Abby owns property which produces an income. She has two sons, Ben (who
is an adult) and Charlie (who is an infant). Anticipating her eventual death, she wants to
provide for her young son, Charlie, so he is cared for while he’s a minor. But she also wants
the property to be eventually split by both sons.
In this case, Abby puts all her property into a trust. At this point, Abby is the se�lor, the
trustee and the beneficiary at the same time. Because she is the beneficiary herself, Abby can
use her property as she likes and take the income from the property as well.
Abby dies and, pursuant to her trust documents, her best friend Be�y becomes the trustee.
The trust property stays in the trust under Be�y’s management, however Be�y can’t use the
trust property for her own good. Income from the trust property goes to Abby’s son, Charlie.
This makes Charlie the beneficiary. When Charlie reaches a certain age (as set by Abby in the
trust documents), the title to the property itself transfers to Ben and Charlie and the trust is
terminated.

Charitable Trusts
A charitable trust is a trust that can benefit an indefinite group and can have perpetual

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existence. Typical charitable trusts provide funds for religious groups or for educational and
health purposes. The doctrine of cy pres (as nearly as) provides that if a particular charitable
purpose cannot be fulfilled in the manner directed by the se�lor, the court can carry out the
general charitable intention by prescribing the application of the trust property to another
charitable purpose consistent with the original.

Resulting and Constructive Trusts


Resulting trusts and constructive trusts are created by operation of law. When the party with
legal title to property is not intended to have it, a resulting trust is created by a court of
equity. A constructive trust is created by a court of equity for the purpose of preventing
unjust enrichment as in the case where a transfer of property is obtained by fraud or
violation of some fiduciary duty.

Duties of the Trustee


The most important thing to remember with regards to the duties of the trustee is that a
breach of these duties creates liability to the trust beneficiaries. The trustee possesses the title
to the property and manages the property for the benefit of the beneficiary. The trustee has
powers to do as he sees fit. However, the trustee is under an absolute obligation to act solely
for the good of the beneficiary, and not for his own good or purposes. Therefore, a trustee
is liable to the trust beneficiaries for any losses due to a breach of trust or for any personal
profit made due to a breach of his fiduciary responsibilities.

Rules for a Trustee


• The trustee may not delegate his responsibility to another person. The trustee must
segregate trust property and may not commingle trust property with his own property.
• The trustee also has a duty to diversify investments of the trust fund. In the area of
investment selection, the trustee must exercise the judgment of a prudent man (using
the prudent man rule). The trustee is also responsible for reviewing assets for quality,
diversification and appropriateness.
• The trustee possesses all the necessary powers to perform the duties of a trustee. These
powers include the power to sell, to lease, to incur necessary expenses, to se�le claims and
to retain investments. However, the trustee does not generally have the power to borrow
money or to mortgage the trust assets.

Termination of a Trust
Once a trust is in effect, it typically cannot be revoked, changed or terminated except
as provided for in the trust document that created the trust. However, there are some
exceptional circumstances in which a trust can be terminated.
• If it can be proven that the se�lor was defrauded or mistaken then he may be allowed to
revoke the trust.
• When its purposes have been accomplished, a trust may be terminated. This requires that
complete determination of property distribution to all beneficiaries has been finalized
and is fixed. If the trust contains any language which makes the property distribution
contingent on an event which hasn’t yet occurred, then the trust cannot be terminated.
• If the purpose of the trust becomes illegal, a trust may be terminated

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• In some states it is possible for a trust to be terminated by the consent of all beneficiaries
provided that all are of legal age and that the termination will not defeat the purpose for
which the trust was created. Some states frequently require clear language within the trust
before they will permit termination by beneficiaries. Other states require clear language
specifically prohibiting the trust’s termination before they will block termination.

SECTION 2.2: INSURANCE

Introduction
Insurance is a way to anticipate risks that would cause significant losses and to provide for
compensation upon the risks’ occurrence. In this way, an individual can be assured that even
if the risk occurs and does cause a significant loss, he can recover assets to partially or totally
offset the loss. Insurance is a contract whereby one party, the insurer, commits to compensate
the other party, the insured, against risks of loss on specified property, etc., by specified risks
or perils. The insured pays the insurer a stipulated consideration called a premium for this
coverage, which provides protection against the risk of loss arising from events over which
the insured has li�le control. Insurance distributes the cost of risk over a large number of
individuals who are subject to the same risks so that those who actually suffer a loss may be
reimbursed.
When an individual insures against a particular type of loss, he can name himself or other
parties as beneficiary. In bank transactions with an individual, for example, the bank’s risk
can be reduced or eliminated if the bank requires that the individual insures against specific
risks and makes the bank the irrevocable beneficiary of the policy proceeds.

General Terms:
• owner—the party who took out the policy and makes the payments
• insured—the person whose life is being insured or the property that is being insured
• beneficiary—the party who receives payment of the proceeds from the insurance policy
• insurer—the party who contracts with the policy owner, i.e. the party who will pay for the
loss
• event—the risk or peril which occurs and which results in loss

Note: Self-Insurance Compared to Insurance


Rather than pay premiums for a policy from an outside insurance company, sometimes
a party will choose to self-insure. Self-insurance is not true insurance, since it is only the
advance financial preparation for possible losses and not a distribution of risk.
There are numerous types of self-insurance. One approach is the periodic se�ing aside
of money into a fund to cover possible losses. Other ways to self-insure are book reserves,
chronological stabilization plans and use of a captive insurance company. The advantage of
self-insurance is the possible savings if losses are small or nonexistent. The disadvantages of
self-insurance are both shortfalls due to incurring losses before a sufficient reserve is built up
and overpayment from incurring losses greater than the cost of regular insurance premiums.

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Chapter Two — General Commercial Law

Insurable Interests
Insurance compensates for substantial loss which the insured would directly suffer from an
event. Therefore there must be a relationship between the policy owner, the insured and the
event—this is called an insurable interest.
To have an insurable interest in property (such as fire insurance) the policy owner must have
a legal interest in the insured property and a possibility of monetary loss. A legal interest
may exist by owning the property or having an interest in the property such as a mortgage
or a lease. The insurable interest is not required at the inception of the policy, but must be
present at the time of the loss. An individual can insure only to the extent that he has an
insurable interest. An individual with a contract to purchase property or in possession of
property may have an insurable interest.
Note: Life insurance or property insurance which is wri�en without any insurable interest
is considered a wager and the policy will not be valid. This prevents an unaffiliated person
from simply be�ing that some other person will die or that the other person’s property
will be destroyed. It also removes any financial incentive for criminal actions which could
threaten the lives and property of others.

Types of Insurance
Life insurance, accident insurance, automobile insurance, fidelity insurance, liability
insurance, malpractice insurance, term life insurance, ordinary life (whole life) insurance,
limited payment life insurance, endowment policy, fire insurance and valued/unvalued
policy are some examples of types of insurance available.

Life Insurance
With life insurance, there must be a relationship so that the person taking out the insurance
(the policy owner) has a legal right to the monetary loss upon the death of the insured. This
insurable interest must exist when the policy is taken out, but is not necessary when the loss
occurs.
There are two types of interest in life insurance.
• Interest in one’s own life:
An insurable interest always exists in one’s own life. That is, everyone has an insurable
interest in his own life, thus may insure his own life and may name anyone as beneficiary.
Therefore, a beneficiary does not need an insurable interest.
• Interest in another person’s life:
An insurable interest in another person’s life is automatically created by marriage and
close blood relationships—so a person may validly insure his spouse’s life or his minor
child’s life. The exception is that a parent does not have an automatic insurable interest in
a child that has reached the age of majority. Some states require verification of a pecuniary
link between the parties when insuring the life of a more remote family member such as
an aunt or uncle (this is called economic expectancy). The insured’s consent to have his life
insured is frequently required.
An insurable interest may also be created by business relationships, but it is typically
capped by the value of the business relationship. A creditor has an insurable interest in the
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Certified Bank Auditor Examination Review — Volume 7

life of a debtor, but only to the extent of the debt. A partnership typically has an insurable
interest in a partner’s life, but only to the extent of his share of the partnership. An employer
may have an insurable interest in a key employee, etc. The insured’s consent to have his life
insured is frequently required.

Types of Life Insurance


• term life insurance—Term life insurance covers the insured for a fixed number of years. If
the insured dies within that term, then the life insurance policy pays. Term life insurance
does not have a savings feature; therefore, it has no cash or loan value. It is typically less
expensive than other types of life insurance and may be renewable at the end of each term.
• ordinary life or whole life insurance—Ordinary life or whole life insurance requires the
insured to pay premiums over his life. A fixed sum is then paid to the beneficiary on the
insured’s death. Whole life policies accumulate earnings which increase over the life of the
policy. These earnings are called cash value and will be paid to the insured if the policy
is surrendered. A policy’s cash value can also be used as collateral for loans. If a loan is
outstanding at the time of the insured’s death, the beneficiary is not liable for the loan. The
beneficiary will receive the face value of the policy less the loan and interest. Some whole
life insurers pay dividends to the insured during the life of the policy.
• limited payment life insurance—Limited payment life insurance requires the payment
of premiums over a fixed number of years, and the policyholder is insured for life. The
premiums for limited payment life insurance are higher than for an ordinary life policy.
• endowment policy—With an endowment policy, the insured is required to pay premiums
for a certain number of years. A predetermined amount is paid to either the insured’s
beneficiary upon the insured’s death during these years or to the insured himself at the end
of this period.

Other Types of Insurance


• accident insurance—Accident insurance provides coverage against expense, suffering and
loss of earnings resulting from personal injury or property damage.
• automobile insurance—Automobile insurance indemnifies against loss or damage to an
automobile from collision, the�, windstorm and fire, plus damage and personal injury
caused to others. Most collision insurance has a deductible amount which the insured must
pay. Some states have no-fault insurance which means that each owner’s insurance pays
his expenses regardless of fault. Legal action is not permi�ed unless property damage and
personal injury exceed a fixed threshold.
• fidelity or guaranty insurance—Fidelity or guaranty insurance insures against loss from
dishonesty of employees or people in positions of trust.
• liability insurance—Liability insurance protects the insured against liability for accidental
damage to people or property and typically includes the duty to defend the insured in a
lawsuit brought by third parties. Intentional wrongs, such as fraud, are not included in this
coverage. With liability insurance the insurer has no right against the insured for causing
the loss, because the insurance is purchased to protect against the loss.
• malpractice insurance—Malpractice insurance is a form of personal liability insurance used
by doctors, lawyers and other professionals. Malpractice insurance protects against liability
for harm caused by errors or negligence in performing work, but does not protect against
intentional wrongs.
• fire insurance—Fire insurance covers direct fire damage plus any indirect fire damage
such as damage from smoke, water or chemicals. Fire insurance covers hostile fires but not
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damage from a friendly fire. Friendly fires include damage caused by smoke from a fire in
a fireplace. Hostile fires are unintentional fires or fires that have le� the intended burning
spot. A blanket fire insurance policy covers a class of property which may be changing, such as
inventory, rather than a specific piece of property.
• valued policy—With a valued policy, the value of the property is predetermined and
becomes the face value of the policy. A valued policy pays face value for a total loss and
actual damages for partial destruction.
• unvalued policy—With an unvalued policy (open policy), the value of the property is
determined at the time of the loss. An unvalued policy does have a stipulated maximum
amount. With an unvalued policy, the insured recovers the fair market value of the
destroyed property.

The Insurance Contract


An insurance contract is similar to a common law contract in that it requires an agreement,
legality, capacity and consideration. Most insurance contracts are a unilateral contract where
the insured prepays the premiums and the insurer promises to indemnify the insured
against loss.
Insurance typically becomes binding at the time of the insurer’s unconditional acceptance
of the application and communication of this to the policy owner. The application (from
the policy owner) is the offer. The issuance of the policy (from the insurer to the owner) is
the acceptance. If a company agent issues a temporary binding slip, the insurer is obligated
between the time of application and issuance of the policy. The insurer may require that
certain conditions be met before the policy becomes effective.

Voiding a Policy
The insurer may void the policy if there is:
1. concealment—If the owner/insured failed to inform the insurer at the time of application
of a fact material to the insurer’s risk that is concealment. In many states, any ma�er
specifically asked by the insurer is automatically considered material. Therefore, failure
to disclose or a misleading answer is concealment. The owner/insured is not required to
disclose facts learned a�er making the contract.
2. material misrepresentation by insured—If a representation is substantially true, then it is
acceptable.
3. breach of warranty—A warranty is a representation incorporated into the policy. It
constitutes a condition that must exist before the insurer is liable and is typically assumed
to be material.

Types of Clauses in an Insurance Contract


Basically, four types of clauses exist:
1. incontestability clause—An incontestability clause means that a�er a certain period
of time, typically two years, a policy cannot be contested because of concealment or
misstatements. Some exceptions to this are nonpayment of premiums, no insurable
interest, no proof of death or the risk is not covered by the policy.

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2. suicide clause—A suicide clause means that the policy will not cover the insured’s suicide
for a certain period of time. Typically this time period coincides with the one used in the
incontestability clause. A�er the time period expires, suicide is covered.
3. coinsurance clause—A coinsurance clause requires the owner/insured to bear a certain
percentage of the loss when he fails to carry complete coverage. The amount of recovery
from the insurer can be calculated as follows:
Amount of insurance
Formula recover = Actual loss x
Coinsurance % x FMV of property
where FMV = fair market value
4. pro rata clause—A pro rata clause allows a person insured by multiple policies to collect
only a proportionate amount of the loss from each insurer.
For example:

Company Amount of Coverage


A $12,000
B $20,000
Therefore, total coverage on the property is $32,000. Reported loss is $15,000. Company A is liable for $5,625, which is
(($12,000/$32,000) x $15,000) of the loss, and Company B is liable for $9,375, which is (($20,000/$32,000) x $15,000)
of the loss.

Other Contract Conditions


In order for the beneficiary to collect, the owner/insured must give the insurer a timely
statement of the amount of loss, cause of loss, etc. This statement must be completed within
a certain specified period, i.e., 60 days. Failure to comply with the time requirement will
excuse the insurer’s liability unless performance is made impracticable.
Most policies have a grace period which allows premiums to be paid within a certain period
a�er payment is due without the policy lapsing. Even if the policy does lapse, some policies
have a reinstatement provision which allows it to be reinstated within a certain period if the
overdue premiums and interest are paid.

Limitations to Coverage
Coverage limitations typically include intentional acts on the part of the owner/insured.
Negligence or carelessness on the part of the insured is insurable and is generally not a
defense for the insurer. Negligence on the part of the insured’s employees is also covered.
The policy cash value and policy proceeds cannot be a�ached by the policy owner’s creditors
if the policy’s beneficiary is named irrevocably. In some states they cannot even be a�ached
by the beneficiary’s creditors. On the other hand, if the named beneficiary is revocable, the
policy owner’s creditors can a�ach the policy proceeds. In some cases, if the policy owner is
in bankruptcy, his and/or the beneficiary’s creditors could even force the policy to be cashed
out for its cash surrender value. However, if the beneficiary is the insured’s spouse, some
states will not allow the beneficiary’s creditors to reach the proceeds.

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Termination Conditions
A life insurance policy may be terminated on expiration of a term policy, the owner’s failure
to pay premiums, forfeiture or payment upon the insured’s death. Typically the insurer
cannot cancel a policy. If an individual misstates his age either the premiums or the benefits
will be adjusted accordingly. Misstatement of age is not material enough to void a policy.

Subrogation
The rights of an insurance company to assume the injured party’s legal claims against third
parties is called subrogation. A right of subrogation exists with accident, automobile collision,
and fire insurance policies. However, no right of subrogation exists with life insurance
policies.
Subrogation gives the insurer the right to step into the shoes of the owner/insured as to
any cause of action against a third party whose conduct caused the loss. In other words,
subrogation prevents the owner/insured from relinquishing his valid legal claim against
third parties without the permission of the insurer. If the insured/owner grants a general
release to the third party who caused the loss, then the insurer is released from his
obligation to the insured/owner. Again, no right of subrogation exists with life insurance
policies.
For example:
Dan owns a home and Edgar, his careless neighbor, causes the home to burn. Dan could sue
Edgar to recover for the loss. If Dan has fire insurance, he would collect the policy’s proceeds
and the insurance company could then sue Edgar in Dan’s place to recover for the loss. This
is called subrogation. However, Dan cannot waive away Edgar’s liability. If he does, Dan
can’t collect the policy proceeds.

Policy Assignment
Since life insurance policies are considered in the nature of an investment, they can be
assigned. Life insurance policies may be assigned by the owner (the assignor). Assignment
transfers the policy’s cash value, the ability to change beneficiaries, and the responsibility
of making premium payments over to the new owner (the assignee). In the case of an
irrevocable beneficiary, the owner cannot assign the policy without the beneficiary’s
approval. Otherwise, once a life insurance policy is assigned, the current beneficiary could
lose all rights if the assignee names a new beneficiary. Assignment typically requires
notifying the insurer and adherence to various formalities.
Note: Proceeds from an in-process insurance claim are assignable even if the policy prohibits
assignment of the policy itself. Fire policies are typically not assignable because of the risk.
The property could be sold to someone who is not reliable. However, policy proceeds from a
claim against an insurer may be assigned.

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SECTION 2.3: GUARANTY AND SURETYSHIP

Purpose
Some individuals contract to share or assume the responsibilities of another person. In these
cases, when the other person defaults on the responsibility, liability is instantly created
for the individual who contracted to share the responsibility. Banks favor this sharing and
assumption of responsibilities as it serves to reduce the risk of default.
Suretyship describes the relationship where one person agrees to be answerable for the debt
or default of another person. It provides security for the creditor by a third person’s promise
to be responsible for the debtor’s obligation. As a result, the creditor has an immediate and
direct remedy against the surety, if the debtor does not pay or perform.

Guaranty and Suretyship Definitions


• party—includes individuals and all types of business organizations
• principal, principal debtor, or obligor—the party who borrows money or assumes direct
responsibility to perform a contractual obligation
• creditor or obligee—the party entitled to receive payment or performance from the
principal or obligor
• surety or guarantor—any party that promises the creditor to be liable in case of the
principal’s failure to pay or perform
Note: Today, the distinction between a surety and a guaranty has li�le significance. The
general principals herein apply equally to sureties and guarantors. The two terms are used
interchangeably.

Types of Guaranty Agreements

General versus Special guaranty agreements


• general guarantor—A general guarantor’s promise is not limited to a single, specific
creditor. For example, a creditor can usually assign a principal’s performance to a second
creditor. If a general guarantor secures the principal’s promise, then the creditor may
similarly assign his rights regarding the guarantor’s performance to a second creditor.
• special guarantor—A special guarantor limits his promise to a single transaction and/or a
specific creditor. A special guarantor’s promise cannot be assigned to a new creditor.

Continuing versus Restricted guaranty agreements


• restricted guaranty—A restricted guaranty agreement is for a specified single transaction or
specified group of transactions.
• continuing guaranty—A continuing guaranty agreement covers a contemplated series of
ongoing transactions over a period of time.

Absolute versus Conditional guaranty agreements


• absolute guaranty—An absolute guaranty agreement comes into effect upon the default of
the principal. At that point the creditor may go directly to the guarantor to collect. In fact, a
creditor can initiate action against the guarantor at the same time it is initiated against the
principal.

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• conditional guaranty—A conditional guaranty agreement requires that the other acts
(additional to the default of the principal) occur before the guarantor can be held liable.
Examples of a condition might be (1) requiring the creditor to follow certain collection steps,
(2) requiring advance notice to the guarantor, or (3) requiring an independent evaluation of
the principal’s performance to substantiate that default does indeed exist.

Compensated versus Uncompensated Guaranty Agreements


A guarantor’s promise to a creditor is contractual in nature and thus its validity and
enforcement both depend upon the consideration exchanged between the two parties. In
the case of both compensated and uncompensated guaranty agreements, the guarantor’s
promise benefits the creditor since the creditor is concerned about the principal’s ability
to perform his promise. This benefit is the consideration gained by the creditor. Naturally,
this raises the concern about the consideration existing and flowing to the guarantor. Some
guarantors are compensated and some are not.

Uncompensated Guarantors
An uncompensated guarantor (e.g., a cosigner on a loan) doesn’t receive pay or anything else in direct
exchange for his contract with the creditor. This could raise concerns about the contract’s validity. In
uncompensated guarantor situations, the consideration given to the principal by the
creditor is regarded as sufficient contractual consideration in exchange for the guarantor’s
promise. However, because the guarantor is not compensated, both the legal interpretations
and enforcement of the contract are eased. For example, even though the uncompensated
guarantor must perform as promised, in recognition of the guarantor’s lack of
compensation, the law typically protects the uncompensated guarantor against unexpected
or enlarged liabilities beyond those specified in the agreement. Also, ambiguous provisions
of agreements with an uncompensated guarantor are typically construed in favor of the
unpaid guarantor. This is a result of the fact that ambiguous contract language is typically
construed against the party writing it. With unpaid guarantors, the contract is usually
framed by the creditor and only signed by the guarantor.

Compensated Guarantors
Compensated guarantors (e.g., bonding companies) receive some pay or other consideration
in direct exchange for his contract with the creditor. This completely supports the contract’s
legal validity and full legal enforcement. The consideration received by the guarantor is
separate and distinct from the consideration promised to the principal.
• The existence of compensation makes for firm legal enforcement of the contract against
the guarantor. Compensated guarantors are not as protected by the law as uncompensated
guarantors, since they are viewed as being able to take care of themselves. Compensated
guarantors typically frame their own contracts.
• As with an uncompensated guarantor, the compensated guarantor must perform as
promised upon the principal’s default. However, in the case of a compensated guarantor,
the law typically will fully and firmly enforce any unexpected liabilities or penalties beyond
those specified in the agreement.

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• The existence of compensation also makes for very firm legal interpretations of the contract
against the guarantor. Ambiguities in agreements with a compensated guarantor are
construed against the compensated guarantor.

Other Examples of Guaranties


Businesses relationships typically involve some level of trust and therefore risk. Typical
standard formats for business bonds are:
• Performance bonds—Performance bonds provide coverage against losses resulting from
the failure of a contracting party to perform the contract as agreed. With a performance
bond, a bonding company acts as the guarantor. The bonding company promises to pay the
party entitled to performance for losses resulting from nonperformance by the principal.
The amount of losses covered is limited to the face value of the bond.
• Fidelity bonds—Fidelity bonds provide coverage for losses resulting from the dishonest
acts of people. Fidelity bonds also have a stated maximum amount of losses to be covered.

Relationships Between a Creditor and a Guarantor


As in other contract relationships, the relationship between the creditor and the guarantor is
fiduciary in nature and requires good faith and fair dealing. A creditor has a duty to disclose
to the guarantor all information significant to the risk being assumed by the guarantor. The
disclosure duty exists only if the creditor has reason to believe that the guarantor does not
know the facts, and if the creditor has a reasonable opportunity to communicate them to the
guarantor. If these factors exist, a creditor’s failure to inform a guarantor of relevant facts
may release the guarantor from liability.
A guarantor’s promise to be liable for a principal’s obligation is created separately from
and independently of the principal’s promise to perform for the creditor. A guarantor
becomes liable to the creditor only when the principal defaults. Therefore, the guarantor is
secondarily liable a�er the principal. Basically, a guarantor promises that the principal will
perform as promised—if not, the guarantor will be liable for the debt.
Guaranty agreements usually result from an express wri�en contract between the
guarantor and the creditor, whereby the guarantor assumes responsibility for the principal’s
performance in the event of default by the principal. A guaranty contract requires
consideration. In many cases this consideration is the same as that received by the principal.

Guarantor’s Rights and Responsibilities


Guarantors provide benefit to both the creditor and the principal by absorbing risk for them.
Guarantors have responsibilities to both parties and are also entitled to certain rights from
both parties.
• The most important right of a guarantor who has completed performance is subrogation.
A guarantor who has performed the obligation of the principal is subrogated to the
creditor’s rights against the principal. Therefore, if the creditor obtains a judgment against
the principal, the guarantor receives the benefit of this judgment when he satisfies the
principal’s debts.
• A guarantor may not avoid a contract because of misconduct on the part of the principal,
even if the principal’s conduct induced him to become a guarantor. However, at the time
of the contract, a creditor who is aware of the principal's misrepresentation has a duty to

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inform the guarantor. A creditor's failure to warn the guarantor may release the guarantor
from liability.
• A guarantor becomes liable to the creditor as soon as the principal defaults. In most states,
the creditor does not have to exhaust his remedies against the principal before seeking to
recover from the guarantor. Even in states where there is such a duty, the guarantor can
waive it in advance.
• The consent of the guarantor is required before a creditor may return collateral received
from the principal. Since this is a loss of subrogation for the guarantor, he is released to the
extent of the collateral's value.
• In the following three situations, the guarantor is entitled to notice before the creditor may
take legal action against him.
1. A guaranty agreement is of a contractual nature and, therefore, may include a clause
requiring the creditor to give the guarantor notice of the principal's default within a
certain period. The courts will enforce such a clause requiring notice. Failure to notify the
guarantor of the principal's default discharges the guarantor's liability.
2. A guarantor who is a drawer or endorser of commercial paper is entitled to notice. Any
drawer of a dra� or check; or any endorser of a note, dra�, check or certificate of deposit
becomes liable on the instrument if presentment for payment or acceptance occurred
within a reasonable time, dishonor occurred and notice of dishonor was given within the
time allowed. Therefore, an individual who becomes a guarantor as an accommodating
party is entitled to be notified of the principal's default.
3. A guarantor who only guarantees collection is entitled to notice. A collection guarantor
is not entitled to immediate notice that the principal had defaulted, but he should be
kept appraised of what actions are being taken to collect from the principal. A collection
guarantor is discharged to the extent that he suffers from a lack of notice.

Guarantor’s and Principal’s Defenses which can defeat a Creditor’s claims


There are situations in which the contract itself is void and therefore the principal is not
required to perform. There are other situations in which the principal has a valid excuse
for not performing and thus cannot be considered to be in default of the contract. These
situations can eliminate the guarantor’s liabilities.
For example:
• a release of the principal by the creditor, thus ending the contract itself
• a modification of the creditor-principal relationship (e.g., a large change in the contract, the
creditor’s acquisition of the principal, etc.)
• nonperformance by the creditor which prevents the principal from performing (e.g., failure
to make progress payments, failure to provide required materials, etc.)
• contract defenses that the principal can assert against the creditor in order to void the
contract (e.g., lack of a primary obligation, undue influence, duress, fraud, illegality, mutual
mistake, impossibility, and lack or failure of consideration, etc.)
As a general rule, a guarantor may also use any defense that the principal can use to reduce
his liability to the creditor as well. The guarantor can be protected by these defenses whether
the principal is relieved of liability or not.
However, the following contract defenses are exceptions to this general rule:
1. The principal's lack of capacity does not relieve the guarantor of his liability.
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2. The principal's discharge in bankruptcy does not relieve the guarantor of his liability.
3. If the principal's performance is excused due to the statute of limitations running out, the
guarantor is not relieved of his liability.

Rule of Releasing
As a general rule, when a creditor voluntarily releases the principal’s liability, the guarantor
is usually released as well. This is based on the fact that the surety is liable only on the
principal’s default. The principal cannot default if the creditor releases his claim against the
principal. Therefore, the guarantor cannot be held liable either.

Exceptions to the Rule of Releasing


The following are exceptions to the general rule of releasing:
1. If a guarantor consents to a principal’s release, the guarantor is not released.
2. If a creditor releases a principal but reserves rights against a guarantor—and the
guarantor knows but does not object—the guarantor is not released.
3. A release obtained by a principal’s fraud (e.g., a bad check) does not release the guarantor
if the creditor rescinds the release prior to the guarantor ‘s reliance.
4. An extension of time for performance agreement must be a binding, enforceable
contract if it is to affect the guarantor ‘s liability. Therefore, it must be for a definite time
and supported by consideration. The creditor’s mere grant of an extension of time for
performance has no impact on the guarantor’s liability. This conduct does not injure the
guarantor, since he is free to perform at any time and pursue all available remedies upon
the principal’s default.
5. If the creditor and principal formalize an agreement to extend the time of performance to
a definite time, a nonconsenting, uncompensated guarantor is released from liability. A
nonconsenting, compensated guarantor is relieved only to the extent that he is injured by
the extension. If the guarantor consents to the extension, these general rules do not apply.

Rule of Discharge
• Any other material modifications in the creditor-principal agreement typically discharge
the guarantor. A modification agreed upon by the creditor and principal acts as a novation
(see Section 9.6, Contracts for a definition) and releases the guarantor from liability.

Exceptions to the Rule of Discharge


1. A guarantor who consents to the modification is not discharged.
2. A nonconsenting, uncompensated guarantor is not discharged to the extent the
modification benefits the guarantor.
3. A compensated guarantor is not discharged if the modification does not materially
increase the guarantor 's risk.

Rule of Reimbursement
A principal owes a guarantor the duty to perform and not to default. A�er the guarantor has
satisfied the creditor’s claim, the guarantor has the right to be reimbursed by the principal.

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Exceptions to the Rule of Reimbursement


1. If the principal informs the guarantor of a valid defense that can be asserted to deny the
creditor’s claim, and if the guarantor fails to use the defense, the guarantor is not entitled
to reimbursement by the principal.
2. If a guarantor performed for the creditor a�er a principal had already performed or had
been released, the guarantor is not entitled to reimbursement by the principal. However,
in this case the guarantor does have the right to have the value of his performance
returned from the creditor.

Coguarantors or Subguarantors
Any contract may have two or more guarantors called coguarantors or subguarantors.
Coguarantors are jointly and severally liable to the creditor. This means that the creditor may
sue them jointly or separately. A subguarantor promises to be liable if the guarantor defaults,
in other words he is a guarantor’s guarantor. Typically, a subguarantorship is created by
agreement of the parties, and a coguarantorship is created by implication.

SECTION 2.4: PARTNERSHIPS

Purpose
Bank transactions are based upon an accurate understanding of the financial status of
each party, specifically the party’s assets and liabilities. It is essential to develop clear
comprehension of all obligations (liabilities) that can ensue from a partnership.

Partnership Definitions
• partnership—A partnership is an association of two or more people to carry on as
co-owners of a business for profit. Competent parties agree to place their money, property
or labor in a business and to divide the profits and losses. Each person could be personally
liable for the debts of the partnership. Express partnership agreements may be oral or
wri�en.
• general partner—A general partner is liable for all partnership liabilities plus any unpaid
contributions.
• limited partner—A limited partner is obligated to the partnership to make any contribution
stated in the certificate, even if he is unable to perform because of death, disability or any
other reason.
• silent partner—A silent partner does not participate in management
• secret partner—A secret partner may advise management and participate in decisions, but
his interest is not known to third parties.
• dormant partner—A dormant partner is both silent and secret.

Essential Elements of a Partnership


The basic essential elements of a partnership are: a common interest in the business and
management, and a share in the profits and losses. Most partnerships start with a pool of the
partners’ capital. The partnership then conducts business using that capital, paying out costs
and salaries. the remaining funds are profits and are returned to the partners in proportion

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to the amount of capital each has put into the pool. Typically, profits do not stay within the
partnership but are flowed out to the partners.

Different Forms of Partnerships


Limited Liability Limited Liability
General Partnerships Limited Partnerships Partnerships (LLP) Companies (LLC)
All partners are general one or more general one or more general All partners are considered
partners. partners with one or more partners with one or more members.
limited partners limited partners
All partners manage the General partners manage; General partners manage; Either members manage or
partnership together. limited partners have less limited partners have less they select a manager.
say. say.
If partnership obligations If partnership obligations If partnership obligations If partnership obligations
exceed partnership exceed partnership assets: exceed partnership exceed partnership
assets: all partners are only general partners assets: no partner is assets: no partner is
personally obligated to are personally obligated personally obligated to personally obligated to pay
pay partnership debts to pay partnership debts pay partnership debts partnership debts.
or tort liabilities (fraud, or tort liabilities (fraud, or tort liabilities (fraud, Every partners’ personal
malpractice, etc.) malpractice, etc.) malpractice, etc.) Every wealth is protected and
Limited partners are only partners’ personal wealth is creditors can be left
obligated to the extent of protected and creditors can uncompensated.
their existing contributions be left uncompensated.
to the partnership. Note: Each partner is
Note: Each partner is obligated to pay his own
obligated to pay his own tort liabilities, whether a
tort liabilities, whether a general or limited partner.
general or limited partner
When a general partner When a general partner When a general partner When a partner dies or
dies or retires, partnership dies or retires, partnership dies or retires, partnership withdraws, the partnership
must be dissolved. (It can must be dissolved. (It can must be dissolved. (It can does not need to be
be restarted again without be restarted again without be restarted again without dissolved.
him.) him.) him.)
Death or withdrawal of Death or withdrawal of
a limited partner is less a limited partner is less
disruptive: partnership can disruptive: partnership can
buyback his interests. buyback his interests.

The Partnership Agreement


The partnership agreement is called the articles of partnership and contains items such
as the names of the partners and the partnership, its purpose and duration, the capital
contributions of each partner, the method of sharing profits and losses, the effect of
advances, any salaries to be paid the partners, the method of accounting and the fiscal year,
the rights and liabilities of the partners on the death or withdrawal of a partner, and the
procedures to be followed on dissolution. The Uniform Partnership Act or other partnership
statutes are also a part of the agreement.

Provisions of a Partnership Agreement


• profit-and-loss provision—Unless the agreement states otherwise, each partner has a right
to share equally in the profits of the business and a duty to contribute equally to the losses.
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Capital contributed by the partners represents a liability of the business to the contributing
partners. If the partnership agreement specifies the division of profits but fails to mention
losses, the losses are divided in the same proportion as the profits.
• partnership capital provision—The capital of a partnership consists of the total credits
to the capital accounts of the various partners. These credits must be for permanent
investments in the business. The partnership is obligated to return this capital to the
partners at the time of dissolution. The partnership agreement determines the amount that
each partner is to contribute plus the credit to be received for contributed assets.
• special authorization for one partner to admit new limited partners—If there is no special
provision then the default position is that the partners will unanimously decide.
• firm name—The parties involved in a partnership select a name subject to two statute
limitations in most states:
a. A partnership may not use the word “company” or other language that would imply
the existence of a corporation.
b. If the name is other than that of the partners, there must be compliance with the
assumed name statutes. These statutes require public notice as to the actual identity of
the partners.
Note: The firm name is considered an asset and may be sold, assigned or disposed of
in any manner agreed on by the partners. Most states allow partnership to sue or be
sued in the firm name. Partnerships may also declare bankruptcy as a firm.
• provisions relating to goodwill—In evaluating the assets of a firm, goodwill is typically
considered. Goodwill can be sold or transferred.
• provisions relating to partnership property—O�en the property classified as partnership
property is determined by agreement between the parties. If there is no express agreement,
the classification of partnership property is determined by the conduct of the parties and
the way the property is used in the business. Most property acquired with partnership
funds is partnership property.
• death provisions—These provisions regarding the disposition of partnership property
upon death of a general partner.
• salary provisions—These provisions are to determine the salaries for partners who work
within the business operations of the partnership.
• buy and sell provisions—All partnerships should provide for the contingency of death
or withdrawal of a partner. Buy-sell agreements are used to cover this contingency. The
provisions of such an agreement should be agreed upon before either party knows whether
he is a buyer or a seller.
Buy-sell agreements provide a method whereby the surviving partner(s) can buyback (i.e.
purchase) the interest of the deceased partner, or the remaining partner or partners can
purchase the interest of the withdrawing partner. The agreement states the method to
be used in determining the purchase price, as well as the time and method of payment
and whether a partner has the option or the duty to purchase the interest of a dying or
withdrawing partner. Generally, buy-sell agreements are funded by the partnership’s
purchase of life insurance on each partner’s life.

Rights, Duties And Powers Of Partners


The duties, rights and powers of partners are both expressed (in the agreement) and implied
(created by law). The statutory law in most states is the Uniform Partnership Act.
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Partnership Rights

Control of the Partnership


Usually, general partners have more management influence over the business than the
limited partners. All partners of the same type (general, limited) have an equal legal right
in management and conduct of business, even if their capital contributions are not equal.
The partners may agree to place management within the control of one or more partners
(managing partners) or may hire nonpartners to manage. Each partner has the right to
review and copy partnership financial and business records (on-site).
Ordinary ma�ers are decided by a majority of the managing partners. If the partnership
consists of two persons who are unable to agree, and if the partnership agreement makes no
provision for arbitration, then dissolution is the only remedy.

Matters requiring Unanimous Consent


• changing the essential nature of the business by altering the original agreement or reducing
or increasing a partner's capital
• embarking on a new business
• admi�ing new general or limited partners (note: some partnership agreements allow for
admission of additional limited partners by nonunanimous decision)
• modifying a general or limited partnership agreement
• assigning partnership property to a trustee for the benefit of creditors
• confessing a judgment
• disposing of the partnership's goodwill (or the partnership’s name or other significant
assets)
• submi�ing a partnership agreement to arbitration
• performing an act that would make impossible the conduct of the partnership business
Note: Engaging a new client does not require the unanimous consent of the partners.

Financial Returns from the Partnership


Partners are not entitled to payment for services rendered in conducting the partnership’s
business, but they may receive a salary. The payment of a salary to a partner requires either
an express agreement stating such or may be implied from the partner’s conduct.
Capital contributions are not entitled to draw interest; a partner’s earnings on his capital
investment are his share of the profits. Interest may be paid on advances to the partnership
above the amount of originally contributed capital. Profits that are not withdrawn but are
le� in the partnership are not entitled to draw interest. A partner has the right to assign his
profit income from the partnership to another party, but he cannot sell or assign his rights to
the partnership property.

Partnership Duties
It must be remembered that a breach of these duties creates a liability to the partnership.
• Each partner has the duty to give the person responsible for record keeping any
information necessary to efficiently and effectively carry on business.
• Each partner must not impede the partnership’s ordinary business.

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• Each partner must act in accordance with the partnership agreement.


• Each partner has the duty to communicate known facts to the other partners and have the
facts added to the partnership records.
Any inside or outside knowledge possessed by one partner and not revealed to the other
partners is still considered notice to the partnership and the partnership is liable as if all
partners had known the information. Therefore, A partner who possesses knowledge and
does not reveal it to the other partners has commi�ed an act of fraud against the partnership
and against the partners.
• Each partner has a duty to refrain from using partnership property for personal use
or benefit, even though each has an equal right to possess partnership property for
partnership purposes.
Possession of partnership property for nonpartnership purposes requires the other partner's
permission. A partner cannot transfer partnership property or use partnership property in
satisfaction of his personal debts.
Note: Property includes physical assets as well as manpower and informational resources.
Using partnership information for personal gain (without permission) is a breach of this
duty.
• Each partner owes the others undivided loyalty, since a partnership is a fiduciary
relationship. Each partner must exercise good faith and consider the mutual welfare of all
the partners in conducting business.
• Surviving partners, in the case of a partner's death, must wind up the affairs of the
partnership in accordance with the partnership agreement and the applicable laws.

Partnership Powers
• power to contract—The general laws of agency apply to partnerships, since a partner is
considered an agent for the partnership business. A partner may bind the partnership with
contractual liability whenever he is apparently carrying on the partnership business in the
usual manner. Otherwise, a partner cannot bind the partnership without the authorization
of the other partners.
Implied powers to contract
a. to compromise, adjust, and se�le claims or debts owed by or to the partnership
b. to sell goods in the regular course of business and make warranties
c. to buy property within the scope of the business for cash or on credit
d. to buy insurance
e. to hire employees
f. to make admissions against interest
g. to enter into contracts within the scope of the firm
h. to receive notices
• power to impose tort liability—The law imposes tort liability (for an explanation of
tort liability see section 9.5 Agency) on a partnership for all wrongful acts or omissions
of any partner acting in the ordinary course of the partnership and for its benefit. The
partnership has the right of indemnity against the partner at fault.

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• powers over property—Partners have implied authority to sell to good-faith purchasers


personal property that is held for resale and to execute the necessary documents to
transfer title. To sell the fixtures and equipment used in the business requires the other
partners’ authorization. The right to sell a business’ real property is implied only if
it is in the real estate business. Other transfers of real property require partnership
authorization.
• financial transactions—Partnerships are divided into trading and nontrading
partnerships to determine the limit of a partner’s financial powers.
A trading partnership engages in the business of buying and reselling merchandise. Each
partner has an implied power to borrow money and to extend the credit of the firm, in the
usual course of business, by signing negotiable paper.
A nontrading partnership engages in the production of merchandise from raw materials or
sells services. In these partnerships, a partner’s powers are more limited. A partner does not
have the implied power to borrow money.

Acts of Nonpartners
Acts of nonpartners who have apparent authority may bind the partnership. Usually, when
dealing with an outside party only a partner can make commitments that are binding on the
partnership. However, an important caveat exists when an individual who is not a partner
conducts himself as though he has authority and makes commitments with an outside party.
With regards to an outside party, partnership liability may be predicated on the legal theory
of estoppel. If a person (by words spoken or wri�en, or by conduct) represents himself as a
partner in an existing partnership, then that person is an apparent partner and is liable to any
party to whom such representation has been made.
The apparent partner may even be liable if credit is extended to the partnership. Some courts
claim that if a person is held out as a partner and he knows it, he should be chargeable as a
partner unless he takes reasonable steps to give notice that he is not. Other courts claim that
there is no duty to deny false representation of partnership if the apparent partner did not
participate in making the misrepresentation.

Extinguishment of a Partnership
Extinguishment can occur two ways:
a. through restructuring—If the partners are restructuring (i.e., adding or subtracting a
partner and adding or subtracting that partner’s finances,) then the enterprise is still going
to continue doing business, albeit with changes in the finances and people involved.
b. permanently—If the partners cease doing business together and the entire enterprise
is stopped, then the enterprise is permanently extinguished and the people leave with
their shares of the partnership finances. Some of the people could then get back together,
although typically they do not.

Steps in Extinguishment
1. dissolution—Dissolution is the legal destruction of the existing partnership relation. It
can be the beginning of the end (“b” above) or a step in restructuring the partnership
(“a” above). This destruction occurs whenever any partner ceases to be a member of the

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firm or a new partner is admi�ed. However, dissolution itself does not actually terminate
the partnership; it specifies the time when partners cease to do business as they have
in the past and (in the case of one partner exiting and the others remaining) start a new
partnership structure. Dissolution is the only step in scenario “a” above. Dissolution is the
first of three steps in scenario “b” above.
2. winding up—Winding up is the process of reducing the assets to cash, paying off the
creditors and distributing the balance to the partners. This is done a�er dissolution only
when the partnership plans to cease all partnership operations. (See scenario “b” above.)
3. termination—Termination occurs when the winding-up process is completed. (See
scenario “b” above.)

Step #1—Dissolution
Remember, dissolution most o�en means that one or more partners are exiting the
partnership; it doesn’t necessarily mean that the remaining partners will cease doing
business together. Usually, dissolution ends the actual authority of any partner to act for
the partnership except to wind up partnership affairs, liquidate the assets of the firm in an
orderly manner or complete transactions begun but not finished. Dissolution also terminates
the actual authority of a partner to bind the partnership, except as necessary to wind up
the business. As far as third parties are concerned apparent authority exists until notice of
termination is given.
There are three ways to dissolution most commonly occurs:
1. through an act of the partners—A partnership at will occurs when a definite term of
duration of a partnership is not specified in the agreement. With this type of partnership,
any partner may legally dissolve the partnership at any time and take his share of the
partnership. All the partner would have to do is give notice to the other parties. The other
partners o�en choose to continue doing business.
2. through a court decree—A court of equity may order dissolution under the following
circumstances:
a. a partner is unable to conduct business and to perform the duties required under the
contract of partnership
b. a declaration by judicial process that a partner is insane
c. a breach of the partnership agreement, misappropriation of funds or commitment of
fraudulent acts by one of the partners
d. application of an innocent party, because the partnership was entered into as a result
of fraud
e. impossibility of carrying out the purposes of the partnership agreement due to the
gross misconduct and neglect or breach of duty by a partner
f. (in some states) any grounds that are equitable or in the best interests of the partners
3. through an operation of law—Dissolution by operation of law occurs when events make
it impossible or illegal for the partnership to continue. These events include the death or
bankruptcy of a partner, a change in the law or a revision that makes the continuance of
the business illegal.

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Rights of Partners in a Dissolution


If the dissolution is caused in any other way than breach of the partnership agreement,
each partner has the right to insist that all of the partnership assets be used first to pay firm
debts. Remaining assets are used to return capital contributions and distribute any profits. A
majority of the partners selects the method and procedures to be used in winding up.
If the duration of a partnership is fixed by agreement and one partner wrongfully
withdraws, the remaining partners may continue the business under the same name for the
remainder of the term. The remaining partners must se�le with the withdrawing partner
for his interest in the partnership and for compensation. The partners may deduct from the
amount due any damages caused by the wrongful dishonor.
A�er dissolution of a partnership the partners have no authority to create liability but
existing liabilities are not discharged. A firm’s creditors are not bound by an agreement
between the partners that one or more of the partners will assume the partnership liabilities
and that the withdrawing partner will not have any liability. The only way a withdrawing
partner may be discharged from existing liability is by agreement with the creditors. This
agreement may be expressed or implied from the parties’ conduct.
If a firm’s assets are insufficient to pay its debts, third parties may lay claim to the partners’
individual property for all debts created while the partnership existed. However, creditors
of the individual partners have first claim on their individual property.

Rights of the Withdrawing Partner


• A withdrawing partner who has not breached the partnership agreement may on
dissolution require the partnership to cease doing business, (i.e., require that the
partnership be wound up and terminated.) The partnership is then liquidated, and the
assets distributed among the partners.
• A withdrawing partner may not require the partnership to cease doing business, (i.e., allow
the business to continue or accept the fact that it has continued.) In this case, the value of the
withdrawing partner's interest in the partnership is ascertained as of the date of dissolution.
The withdrawing partner may then receive the value of his interest in the partnership plus
any future interest. In lieu of interest, the withdrawing partner may receive the profits
a�ributed to the use of his rights in the property of the dissolved partnership.

Parties Entitled to Notice of Dissolution:


1. The firm's creditors, including former creditors, are entitled to actual notice of the
dissolution. If such notice is not given, withdrawing partners and the estate of deceased
partners can be bound by transactions entered into a�er dissolution. Notice eliminates
the apparent authority to bind the former firm and its partners. Notice of dissolution is
required unless a partner becomes bankrupt, or the continuation of the business becomes
illegal.
2. If the dissolution is caused by an act of the parties, public notice must be given. Notice by
publication in a local newspaper is sufficient public notice.

Step #2—Winding Up
A partner’s share of the partnership assets or profits may be determined in a suit for an
accounting. These suits are equitable in nature and must be filed in a court of equity.
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Partners may make a complete accounting and se�le their claims without resort to a court of
equity. An accounting is performed on the dissolution of a solvent partnership and winding
up of its business. All firm creditors other than partners are entitled to be paid before the
partners are entitled to participate in any of the assets.
A partner is entitled to a formal accounting in the following situations:
• the partnership is dissolved
• an agreement calls for an accounting at a definite date
• one partner has withheld profits arising from secret transactions
• an execution has been levied against the interest of one of the partners
• one partner does not have access to the books
• the partnership is approaching insolvency and all parties are not available

Step #3—Termination

Distribution of Partnership Assets


The assets are distributed among the partners as follows:
• Any partner who has made advances to the firm or has incurred liability for—or on behalf
of—the firm is entitled to reimbursement.
• Each partner is entitled to return of his capital contributions.
• Any remaining balance is distributed as profits in accordance with the partnership
agreement.
If a firm is insolvent and a court of equity is responsible for the distribution of the
partnership assets, they are distributed in accordance with a rule known as marshalling of
assets. The firm’s creditors may seek payment out of the firm’s assets and then the individual
partner assets. The firm’s creditors must exhaust the firm’s assets before recourse to the
partners’ individual assets.
The descending order of asset distribution of a limited partnership is as follows:
1. to secured creditors other than partners
2. to unsecured creditors other than partners
3. to limited partners in respect of their profits
4. to limited partners in respect of their capital contributions
5. to general partners in respect of any loans to the partnership
6. to general partners in respect of their profits
7. to general partners in respect of their capital contributions

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The asset distribution hierarchy of a limited partnership is shown below:


First priority Secured
Creditors
Unsecured
Capital contributions
Limited partners
Loans
Profits
General Partners
Last priority Capital contributions

Actions Against Other Partners


Typically a partner cannot maintain an action at law against the other partners, because
the indebtedness among the partners is undetermined until there is an accounting and
all partnership affairs are se�led. However, there are exceptions to this rule if: (1) the
partnership is formed to carry out a single venture or transaction, (2) the action involves
a segregated or single unadjusted item or account, or (3) the action involves a personal
covenant or transaction entirely independent of the partnership affairs.

Admitting a New Partner


If a partnership admits a new partner, the new partner is liable to the extent of his capital
contribution for all obligations incurred before his admission. However, the new partner is
not personally liable for such obligations, even if he is a general partner.

SECTION 2.5: AGENCY

Purpose
Besides any routine personal liabilities, an individual may have additional liabilities arising
from either acting as an agent for another person or from having an agent acting on his
behalf. Having an agent or acting as an agent can create substantial tort or contract liabilities.

Types of Parties, Principals and Agents


Three types of parties are involved in agency arrangements: the principal (P), the agent (A)
and the third party (T). Rather than perform some act or role himself, the principal instead
contracts the agent to carry out the act or role for him. When the agent is carrying out the act
or role, he frequently does business with another person. This other person is third party. In
cases where the agent commits some wrong or has an accident, the person harmed is also
called the third party.
For example:
P contracts A to sell his car. T is the person who buys the car from A.
P hires A to be his delivery van driver. T is the person that A runs over.

Main Definitions
• agency—the fiduciary relationship that exists when one party acts on behalf of and under
the control of another

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1. power of a�orney—One common type of agency is the power of a�orney. This is a


formal document for conferring authority on an agent. Frequently, a power of a�orney
is signed by the principal in the presence of a notary public. The agent in this case is
called an a�orney in fact. A general power of a�orney gives the agent the authority to act
in most respects for the principal and has a broad scope of authority. However, it is not
unreasonable or unlimited. A power of a�orney may also be narrowly wri�en and thus
closely limit the permissible scope of the agent’s actions to a single aspect or transaction.
• agent—the party who acts for the principal
1. broker—an agent with special, limited authority to obtain a customer for an owner who
wants to sell or exchange property
2. factor—an agent who has possession and control of another’s personal property and is
authorized to sell that property
3. general agent—an agent who is authorized to conduct a series of transactions in the
continuous service of the principal
4. special agent—an agent who is not in the continuous service of the principal
5. independent contractor—a person whose services are contracted for by another person.
The independent contractor has a certain end result to accomplish and may determine
the manner and methods used to obtain that result. Because he works under his own
direction and not the principal’s, an independent contractor’s mistakes or misdeeds o�en
do not implicate the principal.
• principal—the party who controls the agent and for whom the agent acts
1. disclosed principal—An agent for a disclosed principal reveals the principal’s identity.
2. undisclosed principal—The principal’s existence is a secret from the third party.
3. partially disclosed principal—The third party knows that a principal exists but does not
know the principal’s identity.

Who can be a Principal?


Typically anyone who may act for himself may also act through an agent. A principal must
be legally competent (not insane, nor deceased). Some states hold that a minor cannot
validly appoint an agent, and therefore, those agent’s actions are voided. Other states allow
a minor to be a principal and to appoint an agent. However, any agreements made by the
agent on the minor principal’s behalf are voidable (by the minor) as though the minor had
made them himself.

Who can be an Agent?


Anyone can be an agent provided that they actually consent to that role. An agent needs
only to be appointed—either in writing or orally—by the principal. The agency may be
either expressed or implied. If an agent is to negotiate a contract required to be evidenced
by a writing under the statute of frauds, most states require that the appointment of the agent
must also be evidenced by a writing. (For a more detailed review of the statute of frauds, see
section 9.6-Contracts.)

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Implied Duties of a Principal


• fiduciary duty—The principal must be loyal and honest in dealing with the agent.
• duty to compensate in general—An agent is entitled to compensation for his services.
The amount of compensation is commonly stated in the contract. If not, the amount of
compensation is the reasonable value of the agent’s services—taking into account past
custom and practice.
• duty to compensate sales representatives—A salesperson is entitled to a commission on
sales solicited and induced by him.
• duty to reimburse—A principal has the duty to reimburse the agent for any reasonable
expenses incurred on behalf of the principal.
• duty to indemnify—A principal must hold an agent harmless or free from liability for
certain tort losses, if the liability results from obeying the principal’s instructions.

Implied Duties of an Agent


An agent has a duty to always remain within the scope of his principal’s conferred authority.
An agent who exceeds his actual authority and binds the principal to the third party is liable
to the principal for any resulting loss or damages. In fact, any breach of a duty creates an
agent’s liability.
• duty of loyalty—Any fiduciary relationship is based upon the duty of loyalty. While
employed by the principal, an agent should not undertake a business venture that competes
or interferes with the principal’s business nor make any contract for himself that should
have been made for the principal. Breach of this duty can result in the principal’s enjoining
the agent’s new business or recovering money damages or both. In addition, an agent may
not enter into an agreement on the principal’s behalf if the agent is the other contracting
party. The principal may rescind any transaction that violates the duty of loyalty. Any profit
realized by the agent in such a transaction belongs to the principal. The principal may also
collect an amount equal to any damages sustained as a result of the breach.
Note: An agent may not represent two principals in the same transaction if the principals
have differing interests.
• duty to protect confidential information—An agent has a duty to protect the principal’s
confidential information—usually called a trade secret. The important issue in cases
involving trade secrets is whether the information sought to be protected is, in fact and
law, confidential. This is determined by the conduct of the parties and the nature of the
information.
• duty to obey instructions—An agent has a duty to obey all instructions issued by the
principal as long as they fall within the duties outlined in the contract. An agent has no
reason to question a procedure outlined by the principal, unless it is illegal or immoral. An
agent may be liable to the principal for any loss that may occur due to his not following
instructions. Failure to perform may result in discharge.
• duty to inform—Knowledge obtained by the agent, while acting within the scope of his
authority, is considered notice to the principal and is binding on the principal. Therefore,
the agent is required to disclose all material facts to the principal. An agent who fails to
inform the principal can be liable to the principal for any resulting damages.
Note: Knowledge obtained by the agent while acting outside his scope of authority is not
effective notice to the principal.
• duty not to be negligent—An agent has a duty to act in good faith and to exercise
reasonable care and diligence in performing his tasks. Therefore, if the principal becomes
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liable because of negligent acts on the part of the agent, the principal may recover from the
agent.
• duty to account—An agent must maintain proper records showing receipts and
disbursements.

Agent’s Authority, Delegation of Authority and Liabilities

Agent’s Authority
Most business contracts are entered into by agents on behalf of their principals. These
contracts bind the third party and principal contractually. For an agent to create a binding
contract between the principal and third party, the agent must have the actual, apparent or
inherent authority or the principal must have ratified his actions.
An agent may be granted actual authority to act on behalf of a principal. On the other hand,
the principal may allow the agent to believe himself to possess authority. A principal may
bind himself by ratifying an unauthorized contract. Ratification requires that the principal—
with knowledge of all material ma�ers—express or imply adoption or confirmation of a
contract entered into on his behalf by a person with no authority to do so. The principal’s
conduct, inconsistent with the intent to reject the contract, implies ratification.

Agent’s Delegation of Authority


An agent may delegate his duties to a third party called a subagent only if the agent’s acts
require no discretion and are purely mechanical. The acts of the subagent are considered
acts of the agent. In certain cases, the agent may have actual authority to appoint other
agents for the principal. These subagents are considered true employees of the principal and
are entitled to compensation from the principal.

Agent’s Liabilities
An agent acting within the scope of his authority is not liable to the principal. The one
exception to this rule is when an undisclosed principal has se�led with the agent prior to
the principal’s disclosure to the third party. In that case, the agent is liable to the principal to
perform the contract as instructed. For example, when an agent enters into a contract for the
purchase of real property from Mr. Jones without disclosing that he is acting for a principal,
Mr. Jones can make claims against either the agent or the principal.

Undisclosed Principal/Agent Liabilities


It is not common for an agent to become bound to a third party, because the principal takes
the agent’s place for liability purposes. However, an agent of an undisclosed principal may
be liable to the third party:
• if the principal se�les with the agent before becoming disclosed
• if the third party elects to hold the agent liable instead of the principal a�er the principal's
disclosure
• based on the way the agent signs the agreement or due to the language of the agreement
• if the agent exceeds his actual and apparent authority and the principal does not ratify

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Other’s Liabilities
A third party is liable to a disclosed principal for any contract created by an authorized
agent. A third party must perform for an undisclosed principal if the contract is assignable
and created by an authorized agent. If the third party does not perform, an agent for an
undisclosed principal can enforce the contract and may sue in his own name.

Tort Liabilities
In the language of tort liability, a master is one who employs another person. A servant is
a person who is employed with or without pay to perform personal services for a master
and is subject to the master’s right or power of control. As described above, an independent
contractor renders services but retains control over the manner of rendering such services.
If a person’s action causes injury to someone, a tort has been commi�ed and the person
who commits a tort is personally liable to the person whose property or body is injured
or damaged. If two people were responsible for the action, they can share liability for the
injury. This is called joint and several liability.
An agent, servant or independent contractor is not liable for the torts, mistakes or misdeeds
of the principal, master or employer. However, the opposite is not true. If an agent or servant
commits a tortious act, then the principal, master or employer can be held jointly and
severally liable for the torts (along with the agent).
Note: The agent is not relieved of liability for his tortious act even if the tortious act is
commi�ed under the direction of a principal. In recognition of the principal’s lack of
involvement, an independent contractor working autonomously is liable for his own
mistakes or misdeeds and usually does not share liability with the principal.
Respondent superior is a concept which states that a master is liable to third persons for torts
commi�ed by his servants within the scope of their employment and in pursuance of the
master’s business. This concept imposes vicarious liability on employers as a ma�er of
public policy, since it is assumed that the master is in a be�er position to pay for the wrong
than the servant. The master is liable only when his business is being carried on or the
wrongful act was authorized or ratified.

Determining if a tort is committed within the scope of employment


There are several factors to take into consideration when determining whether a tort is
commi�ed within the scope of employment. They include:
• nature of the employment—What does the agent do for the employer? What was he doing
when the tort occurred?
• right of contract (not only as to the ultimate result but also as to the means used to get
there)—How much latitude does the agent have in doing his work?
• instrumentality—The instrumentality used in the tort could be the building where the tort
occurred, the materials used, or the vehicle or equipment used in commi�ing the tort.
• furnishing the instrumentality—Was the instrumentality furnished by the employer or the
agent?
• authorization—Was the agent’s use of the instrumentality authorized?
• time—Did the tort occur during work hours or during a work task?

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Exceptions
Most courts inquire as to the intent of the servant and the extent of deviation from expected
conduct involved in the tort. This means that in certain exceptional situations the master is
not liable for torts commi�ed by the servant.
Such exceptions include:
1. frolics—A frolic occurs when a servant neglects his master’s business and pursues his
personal interests.
2. intentional torts—The master is not liable if the intentional tort has nothing to do with his
business and is prompted by a feeling of ill will toward the third party.
3. connectability—The master is not liable if the employee’s act has no reasonable
connection with his employment.
4. destruction or illegality—The master is not liable if the employee’s act involves
destruction or illegality of the agency’s subject ma�er.

Liability of Disclosed versus Undisclosed Principals


A disclosed principal protects his agent from liability as long as the agent is acting within
his granted scope of authority. Thus, a disclosed principal becomes liable to a third party
who enters into a contract with an authorized agent. Disclosed principals also become liable
to third parties if they ratify an unauthorized contract. However, an agent who exceeds his
authority becomes personally liable to the third party, if the principal does not ratify the
contract. Any time prior to ratification, the third party may withdraw from the contract.
Undisclosed principals are liable to agents who enter into contracts within their actual
authority. Neither apparent authority nor ratification can occur since these events arise from
the principal-third party relationship, and there is no principal-third party relationship with
an undisclosed principal. Undisclosed principals become liable to third parties only when
the agent acted within the scope of actual authority and the contract is of the type that can
be assigned to the undisclosed principal.
The law views the liability of partially disclosed and undisclosed principals as being the same. Therefore, any
discussion of an undisclosed principal’s liability applies to a partially disclosed principal as well.

Termination of Principal-Agent Relationships


The agency relationship is terminated upon the death, bankruptcy or incapacity of either
party.
Termination of the principal-agent relationship may also occur by:
a. mutual agreement—The parties may agree in their contract to terminate the relationship at
a definite point in time or on completion of a task. The parties may also mutually agree to
cancel their relationship.
b. unilateral action—Either party to an agency agreement may act independently in
terminating an agency unilaterally. Either party has full power to terminate the agreement
even though he has no right. If the termination occurs prior to the termination date stated
in the agreement, it is considered a wrongful termination. The breaching party may
become liable for damages suffered by the other party.

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c. termination at will—When the agency agreement does not state a definite time period,
either the principal or the agent may terminate the relationship. Both parties have the
legal right to terminate the relationship. In this case, there is no breach of contract and no
liability is incurred.

Exceptions
Exceptions to the termination of an agency agreement include:
• agency coupled with an interest—This relationship exists when the agent has an actual
beneficial interest in the property that is the subject ma�er of the agency (i.e., a mortgage or
security agreement.) This type of agency cannot be terminated unilaterally by the principal
and is not terminated by events such as death or bankruptcy of the principal.
• agency coupled with an obligation—An agency coupled with obligation is created as
a source of reimbursement to the agent. For example, an agent may have a right to sell
a certain asset belonging to the principal and apply the proceeds on a claim against the
principal. This type of agency cannot be unilaterally terminated by the principal, but does
terminate on death, bankruptcy or incapacity of the principal.

Notice of Termination
A principal must give notice of an agency termination to all third parties who have learned
of the agency. Notice may be given personally or publicly (constructive notice). The type of
notice required depends on the third party’s relationship to the agent. If a third party has
dealt with an agent and if the agent is terminated by the acts of the principal or agent, then
the principal must give personal notice to the third party. If the agency is terminated by
action of law, such as death, incapacity or bankruptcy, the principal is not required to notify
third parties. These ma�ers usually receive public notice, and third parties become aware
of the termination. In all cases, if the third party has not dealt with the agent public notice is
sufficient. If proper notice is not given, the agent’s apparent authority will continue to exist.

SECTION 2.6: CONTRACTS

Purpose
Two or more parties intending to transact business can form a contract and therefore
bind themselves and each other to their specific promises. A valid contract creates legally
enforceable obligations. Legally enforceable obligations can be completely fixed and final.
Some obligations may be contingent and depend on future circumstances, yet still be legally
enforceable.
If an individual has formed contracts with other parties, his accrued fixed and contingent
obligations could be a very substantial portion of his overall financial status. When assessing
an individual’s financial status, all of his contractual commitments must be carefully
reviewed and understood as current or future, fixed or contingent.

Definitions
• contract—A contract is a commitment concerning the future conduct of the parties. The law
sanctions the commitment by pu�ing its legal enforcement machinery behind it.

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• offeror/promisor—An offeror or promissor is one of the parties to a contract, typically the


one who initiates the final exchange of promises, (i.e., the one who makes the offer.)
• offeree/promisee—An offeree or promisee is one of the parties to a contract, typically the
one who responds to the final exchange of promises, (i.e., the one who receives the offer
and accepts or rejects it.)
• bilateral contract—A bilateral contract is a promise exchanged for another promise, in
other words, mutual promises (Most contracts are of this type.)
• unilateral contract—A unilateral contract is a promise exchanged for an act of performance,
(i.e., the offeror promises the offeree a benefit if the offeree performs some act.)
• option contract—An option contract is an offer that cannot be revoked for a certain time
period so that the offeree can decide whether or not to accept it.
• express contract—When the parties state their agreement orally or in writing, it is an
express contract.
• implied-in-fact contract—When the agreement is manifested only by the two parties’
conduct, but not in any writing, it is an implied-in-fact contract.
• implied-in-law or quasi contract—This is similar to an implied-in-fact contract. For
example, when A’s conduct (mis)leads B to think they have a certain firm agreement and
B relies upon that agreement. B then gives some benefit to A, but A refuses to honor the
unspoken agreement.
Note: Courts permit the party who has conferred a benefit to recover the reasonable value
of that benefit. This is to prevent the unjust enrichment of one party at the expense of
another.
• valid—A valid contract adheres to the legal requirement for a contract and is enforceable in
court by either party.
• void contract—A void contract is not a contract in the eyes of the law. There is no legal
machinery to protect the bargain of the parties and it will not be enforced in court.
• voidable—A contract is voidable if one or more parties have the power to end it. The law
will enforce the contract unless one party elects to disaffirm it.
• performance—Performance is the term used to describe what the promisee/offeree and
promisor/offeror agree to do for one another.
• executed performance—An executed performance contract has been fully performed by
the contracting parties.
• executory performance—An executory performance contract has yet to be performed by
the contracting parties.
• mutuality of obligation—This requires that each party be bounded or neither party is
bound. The doctrine of mutuality of obligation applies only to bilateral contracts.
• avoid—Avoid is a verb meaning to undo or make void an agreement or action.

Elements of a Contract
All these elements are required for a contract to be valid and enforceable:
1. offer and acceptance—A contract is basically a manifestation of the parties’ mutual assent
reached through an offer and its acceptance. A wri�en agreement is only required in
certain situations.
2. bargained-for consideration—This legally validates that there was some sort of exchange
at the basis of the mutual assent.

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3. legal capacity to consent—In order to bargain and reach agreement, parties must meet
some basic level of competence and legal responsibility.
4. legal purpose—Contracts enforced by the law cannot conflict with the law or be at odds
with public policy.

First Element: An Offer and its Acceptance


A conditional promise made by the offeror to the offeree is an offer. The promise is
conditional because the offeror is not bound unless the offeree (1) performs an act, (2)
refrains from performing an act, or (3) promises to do something or refrain from doing
something. An agreement is reached when the offeree complies with the terms of the offer
within the proper time period. For example, an application is the offer and issuing an
insurance policy is acceptance. A wri�en agreement is needed to form a contract for the sale
of real estate but it is not necessary in most other contracts.

How to Determine Whether an Offer Was Made


This requires:
• evaluating the language used—An offer requires words of present commitment or
undertaking.
• definiteness of offer—This allows a court to be reasonably certain regarding the nature and
extent of assumed duties.
• examining the addressee—The communication must sufficiently identify the offeree or the
class from which the offeree should emerge. No offer exists if the addressee is an indefinite
group.

Duration of A Properly Communicated Offer


A properly communicated offer continues in existence until it:
• lapses or expires—If a definite expiration date is not stipulated, the offer remains open for a
reasonable time. Time is measured from the time the offeree receives the offer.
• is rejected by the offeree—Even if an offer is open for a specified period of time, a rejection
will terminate the offer. Rejection terminates the offer on receipt by the offeror or his
authorized agent. The effect of a counteroffer is to create a new offer and to reject the
original offer.
• is terminated by operation of law—When an offer is terminated by operation of law, notice
of this occurrence does not have to be given to the offeree or offeror. Events that by law
terminate an offer include: the death or adjudged insanity of either party, the destruction of
the subject ma�er of the offer, or illegality that occurs a�er the offer is made.
• is revoked by the offeror—An offer that is not irrevocable may be revoked by the offeror
any time before acceptance, even if the offeror has promised to hold the offer open for
a definite period. This revocation can be communicated to the offeree either directly or
indirectly. A direct revocation is effective when received by the offeree. Indirect revocation
occurs through some third party not associated with the offeror and becomes effective
when the offeree becomes aware of it.

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Irrevocable Offers
An offer may be irrevocable because:
• it is an option contract—An option contract occurs when the offeror sells his power to
revoke to the offeree. The offeree has obtained control of the revocability of the offer, at least
for a specified time.
• of legislation—A merchant’s offer is irrevocable without consideration. A merchant must
sign a writing that the offer will be held open. The offer is then irrevocable for the time
stated in the offer or, if not stated, for a reasonable time.
Note: The time for the offer to be irrevocable cannot exceed three months.
• of the conduct of the offeree—Once the offeree starts to perform or relies on the offer, the
offeror loses the power to revoke the offer.
• of acceptance—This includes any indication by the offeree of his willingness to be bound
by the terms of an offer. Acceptance may take the form of performing an act (unilateral
offer), communicating a return promise to the offeror (bilateral offer), or signing and
delivering a wri�en instrument. An offer can be accepted only by the person to whom it is
made. The offeror has the power to control both the manner (promise or performance) and
mode or medium (phone, mail, telegram, etc.) of acceptance. Acceptance is effective at the
time it is dispatched.

Second Element: Bargained-For Exchange of Consideration


The contents of contracts are basically promises. A promise may be exchanged for another
promise, for performance of an act, or for a forbearance of an act. The offeror (the promisor)
says that he will do X if the offeree (the promisee) will agree to do Y. Keep in mind that
while courts generally do not get involved in determining whether consideration is
adequate, a contract so one-sided that it is unconscionable may be unenforceable.
Some examples:
Offeror/Promisor: “I promise to pay you $100 if you promise to paint my fence”
Offeree / Promisee: “I agree. I promise to paint your fence”
or
Offeror/Promisor: “I promise to paint your fence if you promise to pay me $100”
Offeree/Promisee: “I agree. I promise to pay you $100”
NOTE: Promises can be in different forms. (See later sections.)
Three elements must be present in the bargained-for exchange of consideration:
1. The promisee must suffer legal detriment. A legal detriment can be a promise to perform an
act that one had no prior legal obligation to perform. It can also be to refrain from doing
something that one could legally do and had no prior legal obligation not to do.
2. The promisor’s promise in question must induce the promisee’s legal detriment.
3. The legal detriment must induce the making of the promise.

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Defective Promises
A promise may be defective because:
• it is illusory—An illusory promise is a statement that purports to be a promise but is not
because the promisor need not perform it. There must be a possibility that the promisor will
incur legal determinant or the promise is illusory.
• the promisee is already bound to do what he promises to do—This is called a preexisting
duty. No legal determinant occurs when one promises to do what one is already legally
obligated to do or promises to refrain from doing what one legally cannot do.
• the promise is to forbear from suing, but the promisor has an invalid claim—Forbearance
to assert an invalid claim is determinant if the claim is asserted in good faith and is not
unreasonable.

Promissory Estoppel
The legal doctrine of promissory estoppel sometimes validates a promise even when
bargained-for exchange of consideration is not present. Since there is no exchange of
consideration, the promise isn’t actually a contract. The doctrine of promissory estoppel is
the legal means used to enforce such promises almost as though they were contracts. If a
promisor’s promise can be expected to induce a promisee to make a detrimental change in
his position, then promissory estoppel forces the promisor to fulfill his promise. This is the
law’s a�empt to provide equity (i.e., fairness).

Third Element: Legal Capacity to Consent


Minors (people below the age of majority, also called infants) and insane or intoxicated
persons do not have the legal capacity to assent to contract terms. These parties can render
an otherwise valid contract inoperative through the remedy of rescission.

Insane Persons
Legal capacity to contract refers to the mental state of a contracting party. A person cannot
contract if he does not have a full understanding of his rights and does not have sufficient
mental capacity to understand the nature, purpose and legal effect of the contract. A party
without mental capacity to contract and who has not been adjudicated insane can avoid a
valid contract. However, if a person is legally declared insane, then there is no question, the
contract is automatically void.
If an insane person avoids a contract and the other party has treated him in good faith, then
the insane person must return all consideration or benefit received. If the other party has not
acted in good faith or the contract is unconscionable, the incapacitated party has to return
only what is le� of the consideration.

Minors
Any contracts made with a minor are voidable by that minor. However, only the minor may
void the contract between himself and an adult—the adult is still obliged to the contract. The
rights of minors in avoiding contracts vary from state to state.
On the other hand, a minor remains liable on any contract until he actually takes steps to
disaffirm the contract. A purely executory contract can be disaffirmed by directly inform-
ing the adult or by any conduct that clearly indicates the minor’s intent to disaffirm. If a
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minor disaffirms a contract, he can obtain return of his consideration or must return any
consideration that he received from the other party.
One modification of the minor’s right to void his contracts involves necessities. Necessities
are items needed for a minor’s subsistence as measured by age, station in life and any
surrounding circumstances. Necessities include items such as medical services, education,
food and lodging, and clothing. A minor is liable in a quasi contract for any of these
necessities.

Quasi-contract liability
The two significant features of a quasi-contract liability are:
1. The liability is for the reasonable value of the necessities, not the contract price.
2. The liability exists only for necessaries actually furnished, not on executory contracts.
Note: Most state statutes do not allow minors to avoid contracts dealing with the purchase
of life insurance or between the minor and a university. Some states do not allow married or
emancipated minors to avoid contracts.

Fourth Element: Legal Purpose


A contract without a legal purpose is unenforceable. A contract or provision of a contract is
illegal if it is prohibited by statute, violates the rule of common law or is contrary to public
policy. Contrary to public policy means that the contract is injurious to public interests;
violates some established interest of society; contravenes the purpose of a statute; or
interferes with the public health, safety, morals or general welfare.
In an illegal-contract case, the court typically leaves the parties as they are. Relief may be
granted to a party to an illegal contract in the following three situations:
1. If a party is one of those people for whose protection the contract was made illegal, he
may obtain restoration of what was paid or parted with or maybe even a legal remedy.
2. If a party is induced by fraud or duress to enter into an illegal agreement, the party is
allowed restitution of what he has rendered by way of performance.
3. If a person repents before performing any illegal part of the contract, he may rescind
the contract and obtain restitution for any past performance. This doctrine is called locus
poenitentiae meaning a place for repentance. This doctrine operates within very strict limits.

Violating Statutes
Agreements that violate statutes include:
• violations of license requirements—Certain professionals are required to be licensed by
the appropriate body before they can contract with the general public. If the person is not
properly licensed, the contract for the services is unenforceable. Frequently, the person
receiving the service can refuse to pay the performing party.
• usury—The amount of interest that may be charged on borrowed funds is limited by state
statute. If a lender’s contract a�empts to receive more than the maximum interest, the civil
penalty in most states denies the lender the right to collect any interest. Criminal penalties
are also involved in charging illegal interest.

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• contracts, agreements and activities in restraint of trade—Antitrust laws were established


to protect the U.S. economic system from monopolies, a�empts to monopolize and
activities that restrain trade. The Sherman Act provides three basic sanctions to prevent
restraint of trade:
1. federal felony charges punished by fine (payable to the government), imprisonment
or both.
2. government injunctions to prevent and restrain future or continued acts in violations
of the act.
3. collection by the plaintiff of treble damages plus court costs and reasonable a�orney’s
fees

Violating Public Policy


Agreements that violate public policy include:
• agreements not to compete—An agreement not to compete restrains trade. Agreements
not to compete are commonly found in a contract for the sale of a business, in a contract
creating a business or professional practice or in an employment contract. Such an
agreement may be enforced unless the court determines that it is unreasonable to one or
both parties or to the general public.
• contracts of adhesion and unconscionability—A contract of adhesion is a standardized
contract entirely prepared by one party. The standardized items are submi�ed to the other
party on a take it or leave it basis. These contracts are policed using the equitable principle
of unconscionability. Unconscionability is determined by a judge.

Making a Valid Contract: Formality or Writing Requirements


If the four elements described above are present, the contract will be valid. However,
making the contract enforceable can require certain formalities.

The Statute of Frauds


The statute of frauds requires that certain types of contracts must be in writing to be
enforced, including the following:
• guaranty contracts—A guaranty contract occurs when a party agrees to guarantee the debt
of another. The guarantor is secondarily liable on the debt. This type of contract must be in
writing when its main purpose of guaranteeing the debt is to benefit the debtor.
• contracts involving real estate—Any contract creating or transferring an interest in land
requires a writing.
• contracts of long duration—A contract that cannot possibly be performed within one year
from the time it is made must be in writing. This period is measured from the time an oral
agreement is made to the time when the promised performance is to be completed.
• contracts for the sale of goods—A contract for the sale of goods for an amount of $500 or
more requires a writing. Several provisions of the code relate to the statute of frauds.
• contracts for the sale of personal property other than goods—A writing is required for a
contract involving the sale of securities, the sale of personal property other than goods or
securities if the amount exceeds $5,000, or a secured transaction.
The statute of frauds requires only a note or memorandum that provides wri�en evidence
of the transaction. This writing must be signed by the party seeking to be bound by the

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agreement (the defendant). It should also include the names of the parties, a description of
the subject ma�er (real estate must be described with certainty), the price and the general
terms of the agreement.

Exceptions to the Statute of Frauds

Common law exceptions to the statute of frauds are:


• equitable estoppel or part performance—Equitable estoppel stops one party in an oral
contract from using the statute of frauds as a defense when the other party partly or fully
performs. The statute of frauds requires that the performance must establish existence of
an oral contract and must be substantial enough to warrant judicial relief such as specific
performance of the oral contract.
• promissory estoppel—An oral promise may be enforceable if a party relies on it to his
detriment. Promissory estoppel can be used to prevent an unfair use of the statute of frauds.

Code exceptions to the statute of frauds include:


• wri�en confirmation between merchants—If a merchant contracts orally with another
merchant, he can satisfy the statute of frauds by sending a confirming writing to the
other merchant. If the merchant receiving the writing objects to its contents, he must give
wri�en notice within ten days a�er receipt. This contract is enforceable even though the
confirmation is not signed by the person to be charged.
• specially manufactured goods—To fit into this category the goods must be specially
manufactured for the particular buyer and be unsuitable for sale to others. In addition, the
seller must have made a substantial beginning to manufacture or commitments to obtain
the goods, and the circumstances must reasonably indicate that the goods are for the buyer.
• judicial admissions—An admission of the existence of the contract by the party resisting
the contract will substitute for a writing. This admission is typically made by the defendant
during court proceedings.
• part performance—Contracts are enforceable to the extent that the buyer has made
payment for goods, or the seller has shipped goods which the buyer accepted.

The Parol Evidence Rule


The Parol Evidence Rule provides that statements, promises and representations made
by the parties prior to signing the wri�en contract may not be considered. It prohibits the
introduction of subsequent evidence that would alter a wri�en contract. The theory is that
the wri�en contract integrates all prior negotiations, understandings, representations and
agreements.

Exceptions
Exceptions to the Parol Evidence Rule include:
• oral evidence to establish modifications agreed upon a�er execution of the wri�en contract
• evidence that the agreement has been canceled
• evidence of fraudulent misrepresentation
• lack of delivery of an instrument when delivery is required to give it effect
• errors in pu�ing the contract into writing
• the partial integration rule

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Note: The partial integration rule is defined as follows: If the parties intend the writing to be
final on the terms as wri�en but not necessarily complete on all terms of the agreement.
• evidence which clarifies a contract ambiguity
• evidence which a�acks the legal validity of a contract
• any agreement a�er the writing that is signed by both parties
The code allows wri�en contracts to be explained or supplemented by a prior course of
dealing between the buyer and seller, by usage of trade, or by course of performance. In
resolving any inconsistencies in contract terms, express terms prevail over an interpretation
based on course of performance, and course of performance prevails over an interpretation
based on course of dealing or usage of trade.

The End of the Contract: Satisfactory Performance, Contract Breach,


Voiding the Contract
Ideally, every contract would be performed by the parties and they would go away satisfied.
This is, in fact, the case with most contracts. In other cases, one of the parties does not
perform and is considered to be in breach of the contract. A party being accused of breach of
contract will frequently offer the defense that the contract is not valid and should be voided.
Instead of being on the defensive, on occasion a party will seek to void a contract proactively
rather than be forced to perform or wait for conditions that might qualify as a breach.

Satisfactory Performance of the Promise as Contracted: Tender


In the law of contracts, a tender is the presentation of performance. A person who makes
a tender is ready, willing and able to perform the promise as it was contracted. Most
contracts require that one of the contracting parties tender payment to the other. A bona fide,
unconditional presentation of payment along with actual production of the money or its
equivalent must be made.

Legal Effects of Tender


Suppose A tenders payment to B who refuses to accept the tender.
If tender was proper, the valid tender has the following three important legal effects:
1. Interest stops accruing at the date of tender.
2. If the creditor later brings legal action and recovers only the amount tendered, he must
pay the court costs.
3. Any security interest in property belonging to the debtor would be extinguished.

Contract Breach
There are two terms used when a contract is breached: refusal to perform or failure to
perform. If a party is charged with either of these, he is said to be in breach of contract and
will be liable for certain damages. However, a party can reply to these charges by saying that
he had an inability to perform. All of these conditions are discussed below.

Inability to Perform
If a party is charged with breach of contract, he can offer the defense of inability to perform.

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This sometimes excuses his breach and therefore relieves him of liability.

Inability to Perform a Constructive Condition


An express or constructive condition may create a situation where a party has an inability
to perform. A constructive condition is part of the detailed interaction between two parties
who have contracted. One party’s performance of a constructive condition triggers the
other party’s duty to start performing his side of the bargain. For example, a contract to
excavate a basement may naturally require (but not necessarily in writing) that one party
remove the trees before the other party can do the excavating. A constructive condition is an
implied-in-law condition; it is not wri�en in the contract but is read into the contract in the
interest of good faith and fair dealing.
An express or constructive condition may be legally excused in one of the following ways:
• hindrance, prevention and noncooperation—If one party to a contract makes it impossible
for the other party to perform, then nonperformance on the part of the other party is
excused. If one party breaches a contract because the other party has been uncooperative,
the uncooperative party is not entitled to the usual contract remedies.
• waiver—Waiver means either (1) a promise to relinquish the benefit of a condition to the
promisor duty or (2) the decision to continue under a contract a�er the other party has
breached. Waiver may occur before or a�er a breach. A waiver issued before a breach
assures the other party that performance of the condition is not required. Retraction of a
waiver may occur unless it is supported by consideration or the promise has substantially
changed his position in reliance on the waiver.
• impossibility—Impossibility requires that performance be physically and objectively
impossible. Actual impossibility discharges both parties from their duty to perform.
Impossibility may take one of the following forms:
a. enactment of a law or governmental action that makes performance illegal
b. the death or disabling illness of one of the contracting parties
c. destruction of any subject ma�er essential to the completion of the contract
d. an essential element is missing at the time the contract is made
• commercial frustration—The doctrine of commercial frustration excuses performance
when the essential purpose and/or object of the contract cannot be reached.

Refusal to Perform or Repudiation


Anticipatory repudiation occurs before performance is due and may be express or implied. An
express repudiation is a clear, positive, unequivocal refusal to perform. An implied repudiation
occurs when the promisor makes it impossible for himself to perform.

Nonrepudiating Party’s Remedies


The nonrepudiating party has several remedies to choose from:
• Treat the repudiation as an anticipatory breach and immediately seek damages for breach
of contract.
• Wait until the time for performance and if the other party does breach, then exercise the
remedies for actual breach.
• Treat the contract as still in force. This nullifies the repudiation. The injured party still has
his remedies which were available at the time of performance.

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A party may retract his repudiation as long as the other party has not materially changed his
position in reliance upon the repudiation. Retraction requires only that the party give notice
that he will perform a�er all.

Failure to Perform
Similar to refusal to perform, failure to perform (i.e., doing a very poor job) can be a breach. In
addition, as with inability to perform, failure to perform can include constructive conditions.
(See above.) Constructive conditions that have been poorly performed (or not performed
at all) are a material breach of contract. The nonbreaching party may then choose to either
rescind the contract and sue for damages or continue the contract and sue for damages.
Some constructive conditions have been substantially (yet imperfectly) performed and are
an immaterial breach. In these cases only monetary damages, if anything, may be awarded
to the nonbreaching party. In addition, the nonbreaching party still has the duty to perform.
An example of a substantially performed constructive condition is, for example, when one
party removes the trees but leaves some small saplings and bushes. In this case the excavator
is still expected to perform his side of the deal. The excavator can ask the other party for the
extra costs related to the saplings and bushes. However, the excavator cannot use this as an
excuse to end the contract.

Voiding a Contract
If one party is insisting that the other party honor an enforceable contract, the other party
will need to have a basis for declaring the contract void. Fraud, mistake and duress are
three common grounds for voiding a contract. Failure to read the contract is sometimes
a�empted, but this rarely works to void a contract.

Fraud and Misrepresentation


If one party to a contract misrepresents a material fact, then the other contracting party
may void the contract. An intentional misrepresentation is fraud; an unintentional
misrepresentation is an innocent misrepresentation. In both cases the victim may avoid
the contract, but if the misrepresentation is fraudulent the victim may also sue for dollar
damages.

Determining Fraud
To determine if a misrepresentation is fraudulent several elements must exist. First, there must be
scienter—the intention to mislead. This refers to knowledge by a defrauding party that his
representation is false. Second, there must be a false representation or the concealment of
a material fact. Third, the injured party must have placed a justifiable reliance on the false
statement or concealment. Fourth, damage must have resulted as a result of reliance on the
misrepresentation.
Note: Innocent misrepresentation requires proof of all of the above elements except scienter.

Mistake
In the case of a mistake, the court may grant either a contract correction or avoidance of the
contract. A mistake is an unintended act, omission or error arising from surprise, imposition,
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ignorance or misplaced confidence. The court will grant relief only if the mistake is material
and genuine consent is not present.
A mistake may be bilateral or unilateral. A bilateral mistake refers to an identical mistake on
the part of both contracting parties. If a bilateral mistake has a material effect on the agreed
exchange of performances, then relief is appropriate. A unilateral mistake occurs when only
one contracting party labors under a mistake. The mistaken party is not usually granted
relief. Of course, an offeree who is aware of the offeror’s mistake cannot accept the offer and
profit from it. The only remedy in such a case is rescission.

Duress and Undue Influence


A party who agrees to a contract under duress or undue influence may rescind the
agreement. Duress is a loss of free will due to some threat. Undue influence is a subtle
pressure whereby one party overpowers the will of another through the use of moral, social
or domestic force.

Failure to Read the Contract


Failure to read the contract is rarely considered sufficient reason to void because a person
who signs a wri�en contract is presumed to know the contents of the document. Therefore
a person who signs a contract without reading it is still bound by the contract unless he can
show that:
1. An emergency existed at the time of signing that excused the failure to read.
2. He was prevented from reading the contract by a misrepresentation on the part of the
other party.
3. The two parties involved had a fiduciary or confidential relationship which was relied
upon in not reading the contract.

Remedies: The Courts’ Response to Breached or Voided Contracts


Money damages, specific performance, rescission and restitution are the four basic remedies
in contract law. Typically a party must elect one of these remedies to the exclusion of the
others. Specific performance, rescission and restitution are called equitable remedies.
Equitable remedies are allowed only if the remedy of money damages is not adequate under
the circumstances.

Definitions
• money damages—Money damages may be nominal damages, compensatory damages,
consequential damages, punitive damages or liquidated damages.
• nominal damages—If the nonbreaching party suffers no compensable loss or fails to prove
the amount of loss, he can only recover nominal damages. Nominal damages are typically
one dollar and symbolize the wrong done by the mere breach of contract.
• compensatory (or general) damages—Compensatory damages are designed to compensate
the aggrieved party for his loss. These damages must be a direct, foreseeable result of a
breach of contract—not a rare or fluke outcome of the breach. The injured party should
be placed in the same position he would have occupied had the breach not occurred.
In addition, the injured party must take reasonable steps to reduce the actual loss to a
minimum.
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Note: If a contract is willfully and substantially breached a�er part performance has
occurred, the nonbreaching party does not have to pay for the benefit, if the nature of
the benefit is such that it cannot be returned. If the breach is unintentional, however, the
nonbreaching party may have to pay for the benefit. If the nature of the benefit is such that
it can be returned, the recipient must either return the benefit or pay for its reasonable value
whether the breach is willful or unintentional.
• consequential (or special) damages—Consequential damages arise from special
circumstances surrounding a contract and are not normally foreseeable. To recover these
damages, evidence must be submi�ed that proves the breaching party knew that special
circumstances existed and that these special circumstances would cause the other party to
suffer additional losses in the case of a breach.
• punitive (or exemplary) damages—Punitive damages are awarded to one party in order to
punish the other’s conduct. They are also awarded to deter others from the same conduct
in the future. Punitive damages are most o�en awarded when the breach is fraudulent,
oppressive or malicious.
• liquidated damages—Liquidated damages are stated within the contract as the money
damages applicable in the case of a breach. The amount stated must bear a reasonable
relation to the probable damage to be sustained by the breach.
• specific performance—When the court requires the breaching party to do exactly what he
agreed to do under the contract, it is called specific performance. This is used in cases where
the only adequate remedy may be to require the breaching party to perform the contract.
This remedy is used in contracts where the subject ma�er is unique, such as contracts
involving real estate and personal property.
• rescission—When the court disaffirms the contract and restores the parties to the position
they occupied before making the contract, it is called rescission. A party who discovers
facts that warrant rescission must do so within a reasonable time. Rescission may be used
when a transaction is induced by fraud or mistake, when a minor wishes to withdraw from
a contract, or when a breach is so substantial that the other party should not be required to
perform.
• restitution—When the court requires a party who has been unjustly enriched to return an
unfairly gained item or its value, it is called restitution.

Forms of Contract Discharge


If a contract is discharged, it is canceled and enforcement of its provisions is terminated.
Discharge may occur in one of the following ways:
• Both parties complete the performance of their obligations as specified under the contract.
• The parties work out an acceptable substitute to the original promised performances, (i.e.,
accord and satisfaction: Accord is an agreement whereby one party undertakes to perform,
and the other to accept, something different than what the original contract stated.
Satisfaction means that the substituted performance is completed.)
• There is a legal excuse from a contract performance.
• There is a rescission of the contract.
• There is a voluntary renouncement or waiver by one party. (In this case, no consideration is
required.)
• There is cancellation of a wri�en contract and surrender by one party to the other. (In this
case, consideration or proof of gi� is required.)
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• Parties to a contract may substitute a new debt or obligation for an existing one or replace
an original party to the contract with a new party. This is called novation. (See below for a
definition.)
• The actual obligation is surrendered or destroyed (as with a negotiable instrument).
• Time passes without litigation to enforce one's rights.
• One of the parties enters bankruptcy.
• There is a breach, but not an assignment. (See below for a definition.)

Third-Party Roles in Contracts: Beneficiaries, Novation and Assignment


Besides the two contracting parties, another party o�en becomes involved either because it
is benefited by the promises between the two contracting parties or because it stands in the
place of one of the contracting parties.
• third-party beneficiary—When one party contracts with a second party for the purpose
of conferring a benefit upon a third party, this person is the third-party beneficiary. A
third party beneficiary cannot enforce a contract unless the terms of the contract clearly
indicate intent to benefit the third party. If a third party’s benefit is only incidental to the
contract, he cannot sue. Most states require the beneficiary’s consent to rescind a contract
a�er the beneficiary has accepted its terms. There are two types of third-party beneficiaries:
donee-beneficiaries or creditor-beneficiaries. Both types may enforce a contract made on his
behalf.
• donee-beneficiary—A donee-beneficiary is a third party for whom the promisee purchased
the promise as a gi�.
• creditor-beneficiary—A creditor-beneficiary is a third party for whom the promisee has
contracted for a promise to pay a debt.
• novation—A novation is an agreement whereby all concerned agree to substitute a new
party for one of the original parties to a contract. In essence, a new contract is formed and
the original contract is discharged. Since all parties consent to the substitution in a novation,
the dismissed party is no longer liable. An effective novation requires agreement by the
following parties:
1. remaining contracting party—The remaining contracting party must agree to accept
the new party and release the withdrawing party.
2. withdrawing party—The withdrawing party must consent to withdraw and allow
the new party to take his place.
3. new party—The new party must agree to assume the burdens and duties of the
withdrawing party.
• assignment—When a party to a contract (assignor) transfers to a third party (assignee)
his rights under the contract, it is an assignment. Unlike a novation, in an assignment
contract one party may assign rights without the consent of the other contracting party.
A�er assignment, however, the assignor has given up all interest in the contract rights.
Furthermore, since all parties did not consent, the assignor still remains ultimately
responsible for any duties that were transferred should the new party fail to perform them.

Assignment of Claims
An assignment of claims for money due or to become due under existing contracts is valid.
If the debtor-obligor defaults, the liability of the assignor is determined by the reason for
the assignment. If the assignment is security for a debt owed to the assignee by the assignor,
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the assignor must pay the assignee. If the assignment is a purchase of a debt, the assignor
typically does not have to pay.
The assignor would have to pay only if the claim was sold with recourse. On assignment, the
assignor warrants that (1) the claim is a valid legal claim, (2) the debtor-obligor is legally
obligated to pay, and (3) there are no valid defenses to the claim. The assignor must pay the
assignee if any of these warranties are breached.

Assignment Liability
A�er assignment, the assignee owns the rights to a contract and is entitled to receive them.
If the obligor performs for the original party (the assignor), the contract is not discharged.
Since an assignee stands in the shoes of the assignor, the obligor can assert the same
defenses against the assignee that are available against the assignor.
The liability of the assignee to third parties is made by studying the transaction. This will
determine whether only the rights are assigned or both the rights and the duties. A general
assignment of a contract that calls for the performance of affirmative duties by the assignor
does not impose those duties on the assignee. However, an assignment of an entire contract
carries an implied assumption of liabilities. If the assignee fails to perform, the obligee can
sue either the assignor or the assignee.
The assignee should notify the debtor-obligor of the assignment because:
• If the obligor does not know of the assignment, he may perform for the original contracting
party (the assignor). Therefore, the assignee cannot demand performance from the obligor.
However, the assignor who receives performance under these circumstances can be forced
to turn over any funds or property received from the obligor to the assignee. An obligor
who has received notice must perform for the assignee, and any performance to the
assignor would not relieve him of his obligation to the assignee.
• Notification protects innocent third parties. The assignor has the power, but not the
right, to make a second assignment. Therefore, a party considering an assignment should
communicate with the debtor to confirm that the right has not been previously assigned.
The prospective assignee can feel free to accept the assignment if neither he nor the debtor
is aware of a previous assignment. On assignment, he should give prompt notification to
the debtor. Typically, the first assignee to give notice to the debtor will prevail over another
assignee.

Exceptions to Assignment
Exceptions to the general rules pertaining to assignment are as follows:
1. Contracts involving personal rights or personal duties may not be assigned. In these
cases, the contract performance includes personal trust, confidences, skills, knowledge or
experience. For this reason, such contracts cannot be assigned by one party without the
consent of the other contracting party.
2. A contract that would place an additional burden or risk on one of the parties cannot be
assigned without consent.
3. A party who has the right to purchase goods on credit may not assign this right to a third
party unless the seller has security for payment.

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Antiassignment
An antiassignment clause may be included in a contract. The language of an antiassignment
clause determines how the court will interpret the clause:
a. If the clause prohibits assignments, the promisor has the power to assign, but a promise
not to assign is created. Therefore, an assignment would be effective, but the obligor has a
legal claim against the assignor for breach of his promise not to assign.
b. If the clause invalidates the contract, assignment would be effective, but the obligor can
avoid the contract for breach of the promise.
c. If the clause makes an assignment void, no party has the power to assign.

SECTION 2.7: BANKRUPTCY

Scope
When a person, partnership, corporation or municipality has trouble paying its debts,
bankruptcy may be the answer. Bankruptcy is an ancient law that has been in existence since
the Roman Empire.
The goal of bankruptcy is to fairly resolve a debtor’s finances which have go�en out of
control. As a result of bankruptcy, the debtor’s property is channeled to his debts. These
are then either paid in full, reduced, delayed or sometimes eliminated. Once bankruptcy
proceedings start, creditors are prohibited from a�empting to collect their debts and are
expected to work through the proceeding for any payments.

Bankruptcy Definitions
• bankruptcy—legal process by which a debtor’s property and debts are resolved
• debtor—entity to which the bankruptcy case pertains
• creditor—entity to whom the debtor owes money
• claim—a debt or right to payment from the debtor that is held and asserted by the creditor.
• impaired claim—a debt that the bankruptcy proceedings either decrease or delay.
• unimpaired claim—a debt that is essentially unchanged by the bankruptcy proceedings.
• secured debt—a debt which is accompanied by giving the creditor an interest in property.
• order of relief—court order from the bankruptcy judge (when he decides that the debtor is
entitled to bankruptcy law protection) authorizing the bankruptcy, the trustee’s actions, the
selling of assets and the payment of creditors
• trustee—person responsible for managing the debtor’s assets
• estate—the pool of the property which is the source used to satisfy creditors
• insider—the debtor’s relatives, partners, or (if debtor is a corporation) directors or
executives.

Types of Bankruptcy
In some cases, bankruptcy is a reorganization/rehabilitation opportunity for the debtor so
that he may regain mastery over his affairs (as in Chapter 11 and 13). Chapter 7 bankruptcies
are more severe and require liquidation. All bankruptcies start with a petition, then a court’s
order of relief is issued which authorizes the actual bankruptcy process.
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Five types of bankruptcy proceedings are identified by their chapter in the bankruptcy
statute:
1. Chapter 7 - Liquidation
2. Chapter 9 - Adjustment of Debts of a Municipality
3. Chapter 11 - Reorganization
4. Chapter 12 - Reorganization for Farmers
5. Chapter 13 - Adjustment of Debts of an Individual with Regular Income
Chapter 7 involves liquidation which eliminates most of a debtor’s debts. The creditors’
claims are se�led using most of the debtor’s assets. Chapter 7 is the more drastic debt
remedy in that the debtor loses most of his property and retains li�le control over the
administration of the process. The debtor’s role is passive—a trustee makes a plan and
then gathers the assets, converts them to cash and provides for any payments to creditors.
In Chapter 7, not all debts are paid in full and many are not paid at all. Discharge relieves
the debtor of the remainder of any debts that arose prior to the order of relief and still
remain a�er distribution of the debtor’s property. A discharge of any remaining debt is not
guaranteed, however it is frequently granted to individuals.
Chapter 7 is available to individuals, partnerships or corporations. It is not used by
railroads, insurance companies, banks, savings and loan associations, homestead
associations and credit unions. Stockbrokers and commodity brokers can only file under
Chapter 7 (not the other chapters), since large indebtedness and substantial assets are
involved. Because of this, Chapter 7 includes special provisions for stockbrokers and
commodity brokers.
Chapter 9 applies to insolvent municipalities only and is not applicable to the CBA exam.
Chapter 11 is used when a debtor wishes to restructure his finances and a�empt to pay
creditors over an extended time period. A commi�ee consisting of some of the debtor’s
creditors is appointed by the court to represent the creditors’ interests. The commi�ee
of creditors helps the debtor in preparing a reorganization plan. A trustee is typically
appointed prior to the approval of the debtor’s reorganization plan. The trustee investigates
the relevant aspects of the debtor and files a wri�en report with the court.
As with Chapter 7, Chapter 11 is available only to individuals, partnerships or corporations.
However, unlike Chapter 7, the Chapter 11 debtor stays in charge and retains ownership
of his assets. In Chapter 11 reorganization proceedings, the debtor files a reorganization
plan with the court. This plan classifies claims. The plan specifies the treatment of impaired
claims and denotes the unimpaired classes of claims. The plan provides a means for its
execution and deals with all aspects of the organization of the debtor and its property
and debts. It is required that all claimants receive as much as they would have otherwise
received in liquidation proceedings. Those holding an interest in the debtor’s property vote
to either accept or reject the proposed plan of reorganization. A hearing is held to determine
whether the plan is fair and equitable. Once the plan is confirmed, it is binding on the
debtor, equity security holders and creditors.
Chapter 12 is a new chapter of the U.S. Bankruptcy Code and was signed into law in

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November 1986. It is specifically designed for family farmers, because certain disclosure
requirements and timetables of other bankruptcy codes were considered unworkable for
them. To be eligible, a farmer cannot be more than $1.5 million in debt and $800,000 of that
debt must come from farming. Chapter 12 also requires that at least half of the farmer’s
gross income for the year before filing bankruptcy must come from the farm.
Chapter 12 shields the farmer from creditors and allows him to continue farming. The
reorganization period is only 90 days, much less than other bankruptcy proceedings.
Under Chapter 12, the farmer may sell some land on which a creditor has a lien without the
creditor’s approval. An additional way Chapter 12 is unlike other bankruptcy proceedings is
that creditors in these cases are not allowed to file their own competing reorganization plans
for the indebted farmer.
Chapter 13 proceedings are used when an individual has small debts and a regular income
significant enough that substantial repayment is feasible. With Chapter 13 the individual’s
unsecured debts cannot exceed $100,000 and secured debts cannot exceed $350,000.
Repayment preference in a personal bankruptcy is given to a creditor with a secured interest
in property. The debtor retains possession of his property and his income is used to pay
debts. The trustee controls and supervises the debtor’s income. The plan of adjustment of
debts is confirmed if the court is satisfied that (1) the plan is proposed in good faith, (2) it is
in compliance with the law, (3) it is in the best interest of the creditors, and (4) the debtor can
make the payments the plan specifies.

Starting the Bankruptcy Proceedings: Voluntary and Involuntary


Voluntary bankruptcy proceedings are started by the debtor. A husband and wife may
instigate a joint case. This requires only one petition but both signatures. The petition
includes a bankruptcy schedule which lists the debtor’s secured and unsecured creditors, all
of his property, any property he claims is exempt and is a statement of the debtor’s affairs. A
voluntary petition acts as an automatic order of relief and gives the debtor protection by the
bankruptcy court. Once the bankruptcy judge decides the petition was properly filed and an
order of relief is effective, an interim trustee is appointed.
An involuntary bankruptcy case is started when one or more of a debtor’s creditors files a
petition. If the debtor has twelve or more creditors, the petition must be signed by at least
three whose unsecured claims are not contingent and aggregate at least $5,000. If the debtor
has fewer than twelve creditors, the petition must be signed by only one of them, but the
$5,000 amount must still be met. The debtor may file an answer to the creditors’ petition in
which he can deny any or all allegations. When an answer is filed, a trial is conducted based
on the issues raised by the creditors’ petition and the debtor’s answer. If it is determined that
the debtor is not paying his debts as they become due (or if the debtor does not answer the
petition), relief is granted to the creditors and against the debtor. At that point, the debtor
must still complete the same schedules as a debtor in a voluntary proceeding.
Note: Certain debtors are not subject to involuntary proceedings. Creditors are prohibited
from commencing involuntary proceedings against farmers or not-for-profit corporations
under either Chapter 7 or 11. Also, involuntary proceedings cannot be commenced against
any debtor under Chapter 13.

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The Bankruptcy Process


The following sections discuss stages of the bankruptcy process:
Property Included and Exempted
Debts Included and Exempted
Trustee’s Duties and Powers
Reviewing Debtor’s Past Payments and Transfers
Allowing Creditor’s Claims
Prioritizing and Paying Creditor’s Claims
Discharge

Property Exempted from Bankruptcy


The bankruptcy laws were enacted to give debtors who were in a tough financial situation
a chance to start over. Almost all of the debtor’s assets become part of the bankruptcy estate
from which the creditors are paid. The estate initially includes all legal or equitable property
interests of the debtor. However, in order that the debtor will have some assets with which
to start over, certain items are exempt. Exempt property cannot be recovered and required
for use in paying the debts that arose prior to commencement of the bankruptcy case.
The exemptions are as follows:
• the debtor's interest in real property used as a residence—up to $7,500
• the debtor's interest in a motor vehicle—up to $1,200
• the debtor's interest in furnishings, clothes, appliances, books, animals, crops, etc, that
are primarily held for the personal use of the debtor and his dependents—up to $200 a
particular item, or $4,000 in aggregate value
• the debtors' interest in jewelry—up to $500
• the debtor's interest in other property—up to $400, plus up to $3,750 of any unused real
property exemption
• the debtor's interest in any implements, professional books, or tools of the debtor's (or his
dependents') trade
• professionally prescribed health aids
• unmatured life insurance contracts
• the cash value of life insurance—up to $4,000
• the debtor's right to payments from social security, unemployment compensation, alimony,
etc. (as reasonably necessary), and payments from pension or other similar plans
• the debtor's right to receive life insurance policy proceeds on the life of someone on whom
the debtor was dependent—up to $7,500
• personal injury payments—up to $7,500
Note: Remember that federal and state laws vary and they influence the amounts and types
of exemptions.

Debts Exempted from Bankruptcy


In bankruptcy, almost all of the debtor’s debts are eligible for potential reduction or even

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discharge. However, certain debts cannot be discharged in bankruptcy and the debtor
remains obliged for them.
They are:
• consumer debts over $500 for luxury goods or services incurred within the last 40 days
before the order of relief
• unscheduled debts
• debts owed prior to a previous bankruptcy to which discharge was denied on grounds
other than the six-year rule.
• debts incurred in obtaining property, services, credit or money through false pretenses,
misrepresentation or actual fraud
• student loans if the loan is less than five years old
• debts incurred as a result of an accident caused by driving under the influence
• cash advances granted under a consumer credit plan and for an amount greater than $1,000
within twenty days of the order of relief
• alimony, child support and separate maintenance
• debts for fraud or defalcation while acting as a fiduciary or created by embezzlement or
larceny
• liability for willful and malicious torts
• certain taxes and custom duties
• tax penalties if the tax is not dischargeable

Trustee’s Duties and Powers


Continuing from the point where the court issues an order of relief, voluntary and
involuntary proceedings are the same. Notification of the order of relief is given to all
parties. Notification to creditors includes the date by which all claims must be filed, and
a date for a meeting of the creditors and the debtor. This meeting allows the creditors to
question the debtor under oath and to examine ma�ers that may affect the right of the
debtor to have his obligations discharged. If the meeting is related to a liquidation case, the
creditors elect a permanent trustee.

Trustees’ Duties
Trustees represent the estate and have the capacity to sue and to be sued. During the
proceedings, trustees have the authority to hire any necessary professionals such as
accountants or a�orneys and to invest or deposit the estate money. Typically, the trustee is
responsible for filing the estate tax returns. The following are the duties as defined by law of
a trustee in liquidation (Chapter 7) proceedings:
• investigate the debtor's financial affairs including his (possibly fraudulent) past financial
transactions, payments or property transfers
• furnish any information requested by a party in interest
• if a business is operated: file appropriate reports with the court and taxing authorities
• account for all property received
• oppose the debtor's discharge (if advisable)
• examine proofs of claim and object to the allowance of any improper claim
• collect and reduce to money the estate's property

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• make a final report and file it with the court


Note: In Chapter 11 and 13 reorganization proceedings, the trustee has a less active role and
the debtor retains more control of the property.

Trustees’ Powers
The trustee’s rights and powers with respect to the debtor’s property include:
• a judicial lien on the property, as if he were a creditor
• the rights and powers of a judgment creditor who obtained a judgment against the debtor
on the date the bankruptcy was adjudicated and who had an execution issued that was
returned unsatisfied
• the right of a bona fide purchaser of the debtor's real property as of the petition date
• the rights of an actual unsecured creditor to avoid any transfer of the debtor's property and
to avoid any obligation incurred by the debtor that is voidable under federal or state statute
• the power to avoid certain liens of others on the debtor's property

Reviewing Debtor’s Past Payments and Transfers


In Chapter 7 liquidation proceedings, the trustee acts as an advocate for all of the creditors.
The trustee is on alert to see if the debtor has filed bankruptcy in bad faith. (i.e., He is trying
to escape his debts by hiding money with his friends or family.) The trustee does this by
looking over the debtor’s past dealings to make sure there were no shady deals designed to
hide funds.
Since the trustee is an advocate for all creditors he also is looking for signs of the debtor’s
unfair preference of one creditor over the others. The trustee investigates to see if the debtor
has funneled more money to one creditor to the detriment of the others. If the trustee does
find a questionable past property transfer (either to hide money or to funnel money), the law
allows the trustee to recover the property and put it back into the bankruptcy estate where it
can be distributed properly.

Preferences in Debtor’s Past Payments


One aim of bankruptcy proceedings is to equally distribute a debtor’s property among his
creditors. Therefore, any transfers that show partiality to one creditor over another can be
recovered by the trustee.

Conditions for a Recoverable Preference


The following conditions must be met to constitute a recoverable preference:
• An insolvent debtor must have made the transfer.
• The transfer must have been made to a creditor to whom a debt was owed before the
transfer.
• The transfer must have occurred within 90 days of the bankruptcy petition filing.
• The transfer must have provided the debtor with a greater percentage of his claim than
he would have received under a distribution from the bankruptcy estate in a liquidation
proceeding.

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Payments Not Considered Preferences


The following payments are not considered preferences and, therefore, cannot be recovered:
• payment of tax liabilities
• payment of fully secured claims
• payments in the ordinary course of business or the ordinary financial affairs of people not
in business (i.e., payment of utility bills)

Debtor’s Past Transfers of Property: Hiding property


Some debtors try to hide assets by transferring them to others. Such property transfers may
be seen as trying to undermine the bankruptcy laws and may be considered fraudulent
under federal or state law.
Fraudulent intent is present when:
• The transfer makes it impossible for the creditors to receive full payment or to use legal
remedies that would otherwise be available.
• The debtor was insolvent on the transfer date or the debtor becomes insolvent because of
the transfer.
• A businessperson makes a transfer which leaves him with an unreasonably small amount of
capital.
• A transfer is made in anticipation of debts to be incurred in the future which may be
beyond the debtor's ability to repay as they mature.

Allowing Creditor’s Claims


To share in the distribution of a debtor’s estate, creditors must file a proof of their claims.
Filed claims are allowed unless an objection is filed, whereupon the court conducts a hearing
to determine the claim’s validity.

Disallowed Claims
A claim may be disallowed if it meets any of the following criteria:
• It is unenforceable because of usury, unconscionability or failure of consideration.
• It is unmatured interest.
• It is for unmatured alimony or child support.
• It is for rent not yet due.
• It is paid to an insider or a�orney and exceeds the reasonable value of the rendered
services.
• It is for breach of an employment contract.

Prioritizing and Paying Creditor’s Claims

Priority Claimants
The general order in which priority claimants should be paid:
1. administrative expense claims
2. claims of persons who extend credit to the estate a�er the filing of a Chapter 11
involuntary petition and before a trustee is appointed or before the order for relief is
entered

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3. wage, salary and commission claims—for money earned within 90 days of the filing of the
petition or cessation of the debtor’s business, whichever occurred first —limited to $2,000
per individual (includes vacation, severance and sick pay, as well as regular earnings)
4. contributions to employee benefit plans—for services performed within 120 days before
commencement of the case or cessation of the debtor’s business, whichever came first—
limited to $2,000 (multiplied by the number of employees minus the claims paid under
priority 3)
5. claims against debtors who operate either a grain storage facility or a fish produce storage
or processing facility—limited to $2,000 per farmer or fisherman
6. claims of consumer deposits—limited to $900 per consumer
7. certain taxes due the government
1) income taxes—for a taxable year that ended on or before the date of filing the
extension but cannot be older than three years
2) employment, gi�, estate, sale and excise taxes—must precede the petition date and
cannot be older than three years

Order of Distribution for Remaining Property


In liquidation cases any available property is distributed first among the priority claimants
as discussed above. Any remaining property is distributed in the following order until
exhausted:
1. general unsecured creditors who file their claims on time
2. general unsecured creditors who tardily file their claims
3. holders of penalty, forfeiture or punitive damage claims
4. postpetition interest on prepetition claims
If any property remains, it is returned to the debtor. If the claims within a particular class
cannot be paid in full, they are paid on a pro rata basis.

Discharge
When all payments under the plan have been made and the bankruptcy estate is exhausted,
the court may grant the debtor a discharge of any remaining debts. (A discharge is usually
granted.) However, the debtor may waive the discharge if he wants to remain responsible
for the debts. If a debt is discharged, then the debt is ended and the debtor is relieved of the
debt and the creditor simply doesn’t get paid. If a debt is not discharged, the debtor stays
liable for the debt.
An individual may be denied discharge on any of the following grounds:
• commission of a bankruptcy crime—Bankruptcy crimes typically relate to the proceedings
and include such items as a false oath, the use or presentation of a false claim, or bribery in
connection with the proceedings and withholding of records
• fraudulent transfers—Fraudulent transfers must occur within a year preceding the case
or a�er the start of the case and include acts such as destroying, removing or concealing
property with the intent to hinder, delay or defraud creditors or the trustee.

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• inadequate records—A debtor must maintain adequate records for determining his
financial condition, unless failure to do so is justified.
• failure to explain—If a debtor fails to explain a loss or deficiency of assets, then discharge
may be denied.
• refusal to testify or obey—If a debtor refuses to testify in the proceedings or to obey a court
order, then discharge may be denied.
• connection with another bankruptcy—The discharge may be denied for any of the above,
if within one year and in connection with another bankruptcy case of an insider (insiders
include relatives and partners of the debtor or directors and officers of a corporation).
• prior discharge—The discharge may be denied if there was a prior discharge within the
past six years.
• waiver of discharge—The discharge may be denied if the court approves a waiver of
discharge.

SECTION 2.8: ANTITRUST

Scope
Businesses, either on their own or working together, cannot defeat the competitive markets
by banding together or by operating unfairly. The laws of antitrust and fair competition
operate to make sure that the nation’s economic market isn’t harmed by such actions.

Overview
Antitrust laws are designed to prevent monopoly and to maintain competition. The scope of
the federal antitrust statutes include: (1) the Sherman Antitrust Act, (2) the Clayton Act, (3)
the Federal Trade Commission Act (FTC Act), (4) the Robinson-Patman Act, (5) Wheeler-Lea
Act, and (6) Celler Antimerger Act.
The Sherman Act (15 USC ˜ 1-7) was modified and appended by the Clayton Act (15 USC ˜
12-17 ). The sections added by the Clayton Act were then modified by the Robinson-Patman
Act and the Celler-Kefauver Act. The FTC Act (15 USC ˜ 41, et seq) was modified by the 1938
Wheeler-Lea Act.
These federal statutes when combined with state legislation intend to promote and preserve
competition in a free enterprise system and to prevent monopoly power. The coverage
of these acts extends to interstate commerce among the several states, but not intrastate
activity. All states have antitrust statutes applicable to intrastate activity.

The Sherman Act


The Sherman Act of 1890 is the primary tool of antitrust enforcement. The act declared
that any combination, contract or conspiracy in restraint of trade made among the states
or with foreign countries was illegal. The act also made it illegal to monopolize, a�empt to
monopolize, or conspire to monopolize any portion of interstate commerce or any portion
of trade with foreign nations. However, the Sherman Act did not state exactly what types
of action were prohibited. The wording of the act is broad and general and leaves much
discretion to the federal courts for interpretation.

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To other points regarding the act should be mentioned here. First, the Sherman Act requires
proof of actual and substantial anticompetitive effect. Second, labor unions, agricultural
cooperatives, fisherman’s organizations and export trade associations enjoy limited antitrust
exemptions.
Two substantial provisions in Sections 1 and 2 of the act are described below:
Section 1: “Every contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign nations, is declared
to be illegal.”
Section 1 is concerned with contract, combination and conspiracies in restraint of trade. Two
or more persons working together (i.e., a combination) to fix prices or divide markets in
order to achieve anticompetitive results, for example, would constitute a violation of Section
1.
Restraint of trade consists of horizontal and vertical types. A horizontal restraint is an
agreement among competitors such as manufacturers, retailers and wholesalers. Examples
of horizontal restraints include division of markets, price fixing, group boyco�s and
exchange of market information. A vertical restraint is an agreement between persons
standing in a buyer-seller relationship (i.e., a manufacturer and a retailer in the same line of
products). Examples of vertical restraint include resale price maintenance; location, territory,
and customer restrictions; tying arrangements; and exclusive dealing contracts.
Section 2: “Every person who shall monopolize, or a�empt to monopolize, or combine or
conspire with any other person or persons, to monopolize any part of the trade or commerce
among the several States, or with foreign nations, shall be deemed guilty of a felony.”
These two sections complement each other in achieving the goal of preventing monopoly
and anticompetitiveness.

Violations of the Sherman Act


Violations of both Sections 1 and 2 are felonies punishable for individuals by imprisonment
of up to three years and fines up to $100,000, or both. Corporations are punishable by
fines up to $1 million. Civil actions are more common than criminal proceedings and
approximately 75% of these civil suits are se�led through consent decrees (a compromise
between the government and the defendant). The Sherman Act also contains the seldom-
used forfeiture remedy, where the property may be seized.
A final point: conduct that would violate the Sherman Act in the absence of union
involvement is not immunized by the participation of the union. For example, a union may
not band together with a nonlabor party, such as a contractor or manufacturer, to achieve a
result forbidden by the antitrust laws.

The Clayton Act


The Clayton Act of 1914 was designed to strengthen and clarify the provisions of the Sherm-
an Act. It defines specifically what constitutes monopolistic or restrictive practices, whereas
the Sherman Act does not.
The Clayton Act makes price discrimination illegal unless it can be justified because of
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differences in costs. It also prohibits the use of exclusive or tying contracts when their use
“substantially lessens competition or tends to create a monopoly.” Exclusive or tying contracts
are contracts in which the seller agrees to sell a product to a buyer on the condition that the
buyer will not purchase products from the seller’s competitors. The Clayton Act also made
intercorporate stockholdings illegal if they tend to greatly reduce competition or to create
a monopoly. In addition, the Clayton Act makes interlocking directorates (having the same
individual on two or more board of directors) illegal if the corporations are competitive and
if at least one of the corporations is of a certain minimum size.

Four Important Provisions of the Clayton Act


Sections 2, 3, 7 and 8 are of particular importance.
• Section 2 prohibits certain types of price discrimination. This section was modified by the
Robinson-Patman Act in 1936.
• Section 3 prohibits certain sales made on condition that the buyer not deal with the seller's
competitors.
• Section 7 prohibits certain corporate mergers and was modified by the Celler Act in 1950.
• Section 8 prohibits a person serving on the board of directors of two competing companies
(an interlocking directorate) if one or both companies are larger than a given size.

Violations of the Clayton Act


No criminal sanctions are imposed for violations of the Clayton Act. However, private
remedies as well as legal and equitable relief are available. Legal relief is a private action for
money damages. In a private action, the plaintiff must ordinarily prove both the existence of
an antitrust violation and damages resulting from that violation.
The goal of the Clayton Act is to curb anticompetitive practices in their incipiency. Under the
Clayton Act, simply showing a probable—rather than actual—anticompetitive effect can be
enough cause for a violation of the act. This means that the Clayton Act is more sensitive to
anticompetitive practices than the Sherman Act.

Mergers and the Clayton Act


The scope of the Clayton Act in mergers includes both asset and stock acquisitions. The act
covers both mergers between actual competitors and vertical and conglomerate mergers
having the requisite anticompetitive effect.

Rules of Mergers
• horizontal merger—one between former competitors
• vertical merger—a firm acquires a supplier or customer
• vertically integrate backward or upstream—a business acquires a supplier
• vertically integrate forward or downstream—a business acquires a customer
• conglomerate merger—parties who were neither former competitors nor in the same
supply chain

The Federal Trade Commission Act


Like the Clayton Act, the Federal Trade Commission Act was designed to prevent abuses
and to sustain competition. The Federal Trade Commission Act declared as unlawful “unfair

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methods of competition in commerce.”


The act also established the Federal Trade Commission (FTC) in 1914 and gave it the power
and the resources to investigate unfair competitive practices. The FTC Act authorizes the
FTC to issue cease and desist orders prohibiting unfair methods of competition and unfair
or deceptive acts or practices. These orders provide injunctive relief by preventing or
restraining future unlawful conduct. One of the goals of the FTC is to enforce antitrust laws
and to protect consumers.

Violations of the FTC Act


No criminal sanctions or private damage remedies are imposed for violations of the FTC
Act. Most FTC investigations are se�led by a consent order procedure. However, a $10,000
per day civil penalty is imposed for violating cease and desist orders. In addition, although
not explicitly empowered to do so, the FTC frequently enforces the Sherman Act indirectly
and enjoins conduct beyond the reach of either the Sherman or Clayton Acts.
The FTC has a dual role in prohibiting unfair methods of competition and anticompetitive
practices. The FTC Act supplements the Sherman and Clayton Acts. The FTC protects
consumers who are injured by practices such as deceptive advertising or labeling, without
regard to any effect on competitors.

Robinson-Patman Act
Congress passed the Robinson-Patman Act in 1936 to protect small competitors by
amending the price discrimination section of the Clayton Act. It was wri�en to protect
independent retailers and wholesalers from unfair discriminations by large chain stores
and mass distributors which were supposedly obtaining large and unjustified price
discounts because of their purchasing power and bargaining position. As a result the
Robinson-Patman Act is o�en called the chain store act. The act also makes it unlawful for
sellers to grant concessions to buyers unless concessions are granted to all buyers on terms
that are proportionally equal. The act reaches the quantity discount, a major form of price
discrimination. Both the Department of Justice and the FTC can proceed against violators of
the Robinson-Patman Act.

Details of the Robinson-Patman Act


The Robinson-Patman Act made it illegal:
• to discriminate by granting unjustified quantity discounts which greatly reduce
competition or tend to create a monopoly among sellers or buyers
• to pay brokerage fees if no broker is involved in a transaction
• to grant or obtain larger discounts than those available to competitors who purchase the
same goods in the same amounts
• for sellers to grant concessions to buyers unless concessions are created to all buyers on
terms that are proportionally equal
The Act applies only to sales, not to leases, agency/consignment arrangements, licenses
or refusals to deal (selling to one firm while refusing to deal with another). The scope of
Robinson-Patman Act applies to tangible personal property (commodities) and in the sale of
services or intangibles such as advertising.

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Violations of the Robinson-Patman Act


The Robinson-Patman Act did not change any provisions for enforcement of the FTC Act. It
simply addressed the circumstances arising from the growth of chain stores.
• To violate the statute, the discrimination in price must be between different purchasers.
• A mere showing that different prices were charged is enough to establish a prima facie
violation. Proof of a prima facie case of price discrimination does not necessarily result in a
liability. The seller may avoid the consequences of the discrimination by proving one of
three defenses: (1) cost justification, (2) meeting competition, (3) or changing conditions. The
burden of proving a defense is on the discriminating seller.

Wheeler-Lea Act
In 1938, the Wheeler-Lea Act was passed as an amendment to the FTC Act. The Wheeler-Lea
Act makes “unfair or deceptive acts or practices” in interstate commerce illegal; thus, it is
designed to protect consumers rather than just competitors. Now the FTC has the authority
to prohibit false and misleading advertising and product misrepresentation that harms
consumers (as opposed to focusing just on harm to competitors).

Celler Antimerger Act


The Celler Antimerger Act of 1950 also amended the Clayton Act by making it illegal for a
corporation to acquire the assets—as well as the stock—of a competing corporation if the
effect is to greatly reduce competition or to tend to create a monopoly.

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Practice Challenge Questions


True or False Questions:
Circle T for True or F for False.
1. If someone dies without a will, state law determines who receives any property.

2. If someone dies with a will, state law does not ever change the will’s property distribution.

3. If two parties hold property as tenants in common, the surviving party automatically gets
title.

4. In community property states, spouses cannot be totally disinherited.

5. A person can change his will by attaching a simple slip of paper with the desired
changes.

6. Any sane person can make out a will.

7. If a real estate property is owned by two joint tenants one can keep the other off the
property.

8. Once it is in effect, an irrevocable trust cannot ever be terminated or changed.

9. In a trust, property can be permanently given to a party.

10. In a trust, income from property can be given to a party for a time, then the title given
later.

11. A trust settlor can also be the trust’s beneficiary and trustee.

12. In managing the property in a trust, the trustee has the power to do whatever benefits
him

13. If a trust is irrevocable, only proof or fraud or mistake will allow changing it.

14. A charitable beneficiary can be changed if the will cannot fulfill its original charitable
purpose.

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15. Paul turns his car over to Andrew to sell. Paul is the principal. Andrew is the agent.

16. Phyllis wants to sell an expensive painting anonymously. She retains Angela to sell the
painting. Phyllis is the undisclosed principal and Angela is the agent.

17. Pat contracts Arthur to do whatever Arthur feels is necessary to bring his undeveloped
land to a specific flat finished grade. Pat is the principal. Arthur is an independent
contractor.

18. Peter is a building owner. He hires a rental management firm to handle all rentals in the
building for a fee. Peter is the principal. The rental management firm is the agent.

19. An agent cannot release any part of his responsibility to a subagent.

20. A salesman is liable if one of the watches he sells for the principal turns out to be stolen.

21. Both the principal and the independent contractor are liable for the contractor’s
negligence.

22. Power of attorney allows an agent to do anything he wants with the principal’s property.

23. A principal can still be bound even if an agent exceeds the authority given by the
principal.

24. A company which had authorized Mr. Apt to be its agent must inform their past
customers when Mr. Apt’s agency role is terminated, otherwise Mr. Apt could continue to
bind the company.

25. An executory contract is one that hasn’t yet been performed completely.

26. Performing a service for a person who accepts them is part of a quasi contract.

27. Failing to complete even the tiniest step in a contract is automatically a breach.

28. A promise to donate a large amount of money cannot be enforced.

29. A contract cannot be enforced by anyone except one of the parties who made the
contract.

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30. Liquidated damages is a contract clause which sets the monetary damages for breach.

31. Unwritten contracts are never enforceable.

32. A three-year contract to perform services must be in writing in order to be enforced.

33. A six-month contract to perform services must be in writing in order to be enforced.

34. A patient can sue for breach of the contract made by her caregivers and her husband.

35. A fire insurance policy’s proceeds from a claim cannot be assigned.

36. A fire insurance policy holder cannot waive a lawsuit against the person who started the
fire.

37. A fire insurance policy on property can only be taken out by the property’s actual owner.

38. If several property damage policies cover the same property, claims for losses can be
prorated among the policies.

39. A life insurance company has the right to file a lawsuit against the person who killed the
insured.

40. life insurance policy’s cash value is immune from attachment by the policy owner’s
creditors.

41. A life insurance policy with an irrevocable beneficiary usually requires approvals before
its assignment.

42. A life insurance policy pays regardless of the method or circumstances of the insured’s
death—even suicide.

43. Once a life insurance policy is assigned, the new owner usually must make future
premium payments.

44. Once a life insurance policy is assigned, the new owner can usually change the named
beneficiary.

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45. If the insured person lies about an illness on the policy application, and later dies from
that illness, the policy may be voided.

46. If an insurance policy payment is late, then the policy is canceled and the insurance is
no longer in force.

47. General partners have less personal risk that limited partners.

48. Both general partners and limited partners have the same say in business operations.

49. If another partner commits a tort, general partners have personal liability too.

50. Withdrawal of a limited partner is less disruptive than withdrawal of a general partner.

51. Adding a new limited partner is easier than adding a new general partner.

52. More general partners means more people controlling and binding the partnership.

53. More limited partners means more people controlling and binding the partnership.

Multiple Choice Questions


Circle the le�er that best completes each sentence or answers each question.
1. A witness to a will usually can receive:
a. nothing at all from the estate
b. no more than his regular statutory amount
c. payment just for signing the document

2. As tenants in the entirety, a husband and wife can hold:


a. only their real estate property
b. all their property
c. all their property, plus property they share with other family members

3. In making a will, one must always:


a. sign it oneself
b. give property to one’s spouse
c. get it witnessed

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4. In settling an estate with a will, distributing the property to heirs:


a. always comes first
b. follows the payments of debts and taxes
c. happens before the probate court proceedings

5. Which of these are not valid insurable interests for fire or property damage:
a. Policy Owner = A, Insured = home that A is contracted to buy
b. Policy Owner = B, Insured = building leased by B
c. Policy Owner = C, Insured = C’s neighbor’s house
d. Policy Owner = D, Insured = D’s mortgaged property

6. Which of these is not a valid insurable interests for life insurance:


a. Policy Owner = a partnership, Insured = one of the partners
b. Policy Owner = a mother, Insured = her grown son
c. Policy Owner = movie studio, Insured = the stars of film in production
d. Policy Owner = a bank, Insured = a mortgage debtor to the bank

7. The proceeds of a life insurance policy (with an irrevocable beneficiary):


a. can be attached by the policy owner’s creditors
b. can be attached by the beneficiary’s creditors
c. can be attached by the insured’s creditors
d. can be attached by the insurance company’s creditors

8. Which of these is not a typical clause in an insurance contract?


a. claims must be prorated among policies covering the same property
b. a coinsurance policy requires the property owner to help pay for damage
c. within certain time limits, proceeds cannot be collected upon the insured’s suicide
d. a single missing or late payment results in policy cancellation

9. A car loan with the borrower’s parent as cosigner is:


a. a restricted, uncompensated guaranty
b. a continuing, compensated guaranty
c. not a guaranty

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10. A guaranty agreement requiring that the creditor perform certain steps before holding
the guarantor responsible is called:
a. an absolute guaranty
b. a conditional guaranty
c. an uncompensated guaranty

11. A person who promises to perform upon another person’s default is a:


a. creditor
b. principal
c. guarantor

12. If a principal defaults on payment, and the guarantor refuses to pay, the creditor may
sue:
a. the principal, but only if the guarantor has defaulted first
b. both the principal and the guarantor
c. only the guarantor

13. A guarantor can defend himself against a creditor’s claims for payment if:
a. the contract was void all along due to the principal’s fraud
b. the principal went bankrupt
c. the contract was void all along due to the creditor’s fraud

14. If the principal and creditor change their contract to twice the work and money as
before:
a. The creditor must wait twice as long after default to collect from the guarantor.
b. The guarantor is not liable for any default unless he consented to the change.
c. Nothing changes in the guarantor/creditor/principal relationship.

15. If the principal has not yet performed when a guarantor satisfies the creditor’s claim:
a. The guarantor can then seek reimbursement from the principal.
b. The guarantor can then seek reimbursement from the creditor.
c. The guarantor can’t be reimbursed.

16. If the principal had already performed when a guarantor satisfies the creditor’s claim:
a. The guarantor can’t be reimbursed.
b. The guarantor can then seek reimbursement from the principal.
c. The guarantor can then seek reimbursement from the creditor.

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17. If a creditor lies about the principal to a guarantor securing the principal’s performance:
a. The principal is no longer liable for default.
b. The guarantor can be released from securing the principal’s performance.
c. The contract between the creditor and principal is void.

18. In a general partnership, any single partner acting alone has the right to:
a. review partnership books
b. commit to a new field of business
c. sell partnership equipment
d. enroll a new general partner

19. In a general partnership, approval of all other partners is required for:


a. making any contracts with regular customers
b. all hiring and firing of employees
c. approving a partner’s personal use of partnership assets
d. determining routine business priorities

20. When a limited partnership is dissolved, wound-up and terminated:


a. Partners can still bind the partnership by making contracts with others.
b. General partners are refunded their capital contributions before limited partners.
c. All existing liabilities are automatically extinguished.
d. Creditors are paid before partners.

21. All of these items are in the partnership agreements except:


a. any salaries and profit arrangement among partners
b. an ongoing list of all current partnership assets
c. capital contribution amounts from each partner
d. the name of the partnership

22. Both the principal and the agent are liable for
a. the principal’s defective merchandise
b. the agent’s fraud in carrying out the principal’s business
c. the agent’s independent criminal acts
d. for damage done during the agent’s frolic

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23. A bar owner can also be held liable for:


a. his bartender’s onsite sale of liquor to minors
b. local vandalism done by the bar’s after-hours contract security service
c. his janitor’s theft of liquor and subsequent after-hours drunk driving
d. injuries caused by his bouncer’s road rage en route to the bar

24. Under respondent superior, a bakery is not likely to be liable for:


a. price and schedule commitments made by its wholesale salesman
b. accident damages due to its delivery van driver’s midday sleepiness
c. the chief baker’s incorrect statements regarding contents of the baked goods
d. accident damages due to its drunken janitor’s late-night theft of the delivery van

25. A rental apartment firm (responsible for renting and managing others’ buildings) can:
a. commit to sell the property if the offer is very high
b. withhold information about building dangers from the building owners
c. contract another party to do weekly lawn mowing
d. contract another party to screen all new renters

26. All of the following require a written contract, except:


a. an agreement to paint another person’s home
b. an agreement to purchase another person’s home
c. an agreement to assume the debt for another person’s home

27. Which is not compensatory damages for a breach of a restaurant’s roofing contract?
a. a restaurant’s cost for repairs and cleaning of their building and furniture
b. the lost business due to a restaurant’s inability to cook under a leaky roof
c. the cost to replace a very rare aquarium fish killed by unusually toxic rainwater

28. All of the following circumstances will typically support voiding a contract, except:
a. a party’s duress caused by the other party’s overbearing threats
b. a party’s failure to read the contract
c. a party’s fraudulent description of an item being exchanged

29. Which one of the following is a legal purpose for a contract:


a. a person who had been assaulted agrees to refrain from suing the other party
b. a person agrees to rent the use of his address to an immigrant for INS papers
c. a person agrees to pay three times the regular bank rate for a loan

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30. All of these are bilateral promises, except:


a. “I will mow your lawn if you will trim my trees.”
b. “I will pay $20 to whoever finds my dog.”
c. “I will pay you $100 if you promise to send me your autographed baseball.”

31. A novation is when one contract party:


a. gets someone to purchase his right to payments due from the other contract party
b. gets someone to take over his rights / responsibilities and the other party agrees
c. makes a the contract to provide benefits for a third party

32. Which of the following is true about offers:


a. The offer is rejected if the offeree receives any other offers from anyone else.
b. The offer is valid for months, years—indefinitely.
c. The offer, once revoked by the offeror, cannot then be accepted by the offeree.

33. Which of these is not a defective promise:


a. One party promises to do something he is already bound to do.
b. One party promises to exchange a very valuable item for a less valuable item.
c. One party promises to refrain from suing someone who has never wronged him.

34. Which of the following is not available to a corporation filing for bankruptcy:
a. Chapter 7
b. Chapter 11
c. Chapter 13

35. A person filing for bankruptcy can expect to retain all of these items except:
a. his clothes
b. his motorboat
c. his work equipment

36. A person filing for bankruptcy cannot expect to be relieved of:


a. his credit card debts
b. his overdue cable bills
c. his child support obligations

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37. Creditors can try to force a person into:


a. Chapter 9 bankruptcy
b. Chapter 7 bankruptcy
c. Chapter 13 bankruptcy

38. A trustee does all the following acts except:


a. identify the reason the debtor was insolvent
b. examine the debtor’s recent transfers of property
c. review all claims submitted by creditors

39. The trustee reviews the debtor’s past financial dealings for all of the following reasons
except:
a. to see if the debtor has hidden property with a friend or family
b. to see if the debtor has paid off one creditor in preference to the others
c. to see if the debtor is a mentally incompetent

40. Regarding repayment after a debtor’s bankruptcy, Creditors cannot usually expect:
a. to eventually get all the amount due them
b. to be placed in a hierarchy with the other creditors
c. to be paid at least some portion of the amount due to them

41. A debtor may be denied discharge on the following grounds except:


a. keeping poor records of his financial condition in the past
b. past poor decision making in managing his financial affairs
c. a fraudulent transfer of property

42. Once someone files Chapter 7 bankruptcy:


a. he is expected to provide a repayment plan and work with creditors to follow it
b. he maintains control over which creditors get paid and when
c. he loses much control over the resolution of his financial problems

43. Which is not likely to be a violation of the Sherman and/or Clayton Act?
a. A large gas station franchise agrees with a similar franchise to keep prices high.
b. A corporation requires that its suppliers not deal with any of its competitors.
c. All downtown retailers agree to stay open late for Midnight Madness sales.

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44. A violation of the Clayton Act could result in the following except:
a. fines
b. jail time
c. court orders

45. Which act protects consumers who are injured by unfair competitive practices?
a. the Sherman Act
b. the Federal Trade Commission Act
c. the Clayton Act

46. The Robinson-Patman Act prohibits:


a. unjustified pricing discounts given to one buyer but not another
b. mergers between competitors
c. competitors conspiring to hold prices high

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Answers to Practice Challenge Questions

Practice Challenge
Question Answers

Chapter 1 Answers
1. Answer: T
2. Answer: F—The provisions of the Code may be changed by agreement among the
parties except as forbidden in the Code. Good faith, diligence, reasonableness and care
may not be disclaimed.
3. Answer: T
4. Answer: F—In certain instances, the purchaser may actually take more than the seller.
For example, where: 1) the transferor is deceived as to the identity of the purchaser; 2)
the delivery is in exchange for a bad check; 3) it was agreed to be a cash sale; or 4) the
delivery was procured through fraud, the buyer receives a voidable title. This means that
the seller may void the buyer’s title to the items he has received. If, however, the buyer
with voidable title sells to a good faith purchaser for value of the items, the good faith
purchaser receives full title and it ceases to be voidable by the original transferor.
5. Answer True
6. Answer: F—Commercial paper consists of two basic types of instruments: drafts and
notes.
7. Answer: T
8. Answer: T
9. Answer: T
10. Answer: F—The beginning of the collection process is the deposit of a check in a
customer’s account. The check is then provisionally credited by the bank.
11. Answer: T
12. Answer: F—An issuer must honor a draft or demand for payment which complies with
the terms of the applicable letter of credit.
13. Answer: True
14. Answer: True
15. Answer: F—Perfection by attachment requires only the attachment of the security
interest without any further action being required. This is often referred to as automatic
perfection.

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16. Answer: T
17. Answer: T
Multiple Choice Answers
1. D
2. B
3. A
4. A
5. B
6. A
7. B
8. C
9. B
10. A
11. D
12. B
Essay Answers
1. Commercial paper is a term used to describe certain types of negotiable instruments. A
negotiable instrument has the capacity to pass like money from person to person and
is used as a medium of exchange. A negotiable instrument is a special type of written
contract that represents credit and functions as a money substitute.
2. 1. must be in writing and signed by the drawer or maker
2. must contain an unconditional promise or order to pay a sum certain in money
3. must be payable on demand or at a definite time
4. must be payable to order or bearer
3. Warranty of title: The seller warrants good title, rightful transfer, and freedom from any
security interest or lien of which the buyer has no knowledge. This warranty can only
be disclaimed by specific language or circumstances which make it clear that the seller
is not vouching for the title. A seller who is a merchant warrants the goods to be free of
any rightful claim of infringement.
An infringement may occur when the buyer furnishes specifications to the seller for the
manufacturer of the goods. In this case the seller does not warrant against infringement,
and the buyer must protect the seller from any claims arising from such an infringement.
Express warranties: Express warranties include any affirmation of fact or promise
which is not just sales talk or an opinion and which becomes part of the bargain. The
buyer does not have to prove reliance on this affirmation, and the seller does not have
to intend to create a warranty. A seller warrants the goods to be of the same general
quality of the sample, model or his description.
Implied warranties: Implied warranties arise as a matter of law and are legally present
unless clearly disclaimed or negated. Liability for the breach of an implied warranty
is based on the public policy of protecting the buyer of goods. There are two kinds of
implied warranties.

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If the seller is a merchant who deals in goods of the kind involved in the contract, an
implied warranty of merchantability is created. This warranty means that the goods are
fit for the ordinary purpose for which goods of this type are used and will pass without
objection in the trade. This warranty applies to new and used goods in most states
unless the warranty is modified or excluded.
An implied warranty of fitness for a particular purpose is created when the seller
knows of the particular use of the good and knows the buyer is relying on the seller’s
skill or judgment to select or furnish suitable goods. The implied warranty of fitness
is applicable to both merchants and non-merchants. The warranty does not arise if
the buyer’s knowledge is equal or superior to the seller’s. The good is warranted for
the particular expressed purpose, and the seller may be liable if the good fails to so
perform.
4. The express elements required for a sales contract are:
1. Parties: All parties involved or affected must be described.
2. Price: If a price is omitted, the contract will be enforced at a reasonable price.
3. Time for performance: If time is omitted, then reasonable time is implied. If the
contract states that time is of the essence, then delay in performance is a material
breach, which means the non-breaching party can terminate performance and sue for
damages.
4.Subject matter: Typically, before an agreement is considered enforceable, the quantity
must be included. If parties estimate the quantity involved, a quantity unreasonably
disproportionate to the estimate will not be enforced. For the most part, if no mention of
quantity is found, the contract is unenforceable. If, however, an estimate is not agreed
on, a quantity in keeping with normal or other comparable prior output or requirements
may be implied.
5. Protest is a formal method of fulfilling the conditions precedent. Protest is required
only for drafts that are drawn or payable outside the U.S. The protest is a certificate
which states that an instrument was presented for payment or acceptance and was
dishonored. The protest explains why the instrument was not accepted or paid.
7. Holder in Due Course
A third party who rightfully and legally possesses an instrument may be an assignee, a
transferor, a holder or a holder in due course. If the instrument is a simple contract, the
third party is an assignee. If the third party possesses a negotiable instrument that has
been improperly negotiated, the party is a transferee with the status of an assignee.
According to the UCC, a holder is a party in possession of a negotiable instrument
issued, drawn or endorsed to his order, to him or bearer, or in blank. A holder in due
course has a special status and a preferred position in the event there is a claim or a
defense to the instrument.
The distinct benefit of negotiability is the ability to transfer the instrument to a holder in
due course, that is a holder who takes free of personal defenses drawer/maker. There
are three requirements that must be met before a holder becomes a holder in the due
course. The holder must have acquired the instrument:
1. for value; 2. in good faith; 3. without notice that it is overdue, has been dishonored or
any other person has a claim to or defense against it.
8. Depository bank: The first bank to take an item even though it is also the payor bank,
unless the item is presented for immediate payment over the counter.

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9. An engagement by a bank or other person at the request of a customer that the


issuer (bank or other person) will honor drafts or other demands for payment upon
compliance with the conditions specified in the credit. A credit may either be revocable
or irrevocable.
10. 1. a credit issued by a bank if it requires a documentary draft or documentary demand
for payment
2. a credit issued by a person other than a bank if it requires that the draft or demand for
payment be accompanied by a document of title
3. a credit issued by a bank or other person that conspicuously states that it is a letter of
credit or is conspicuously so entitled
There are two types of letters of credit: revocable and irrevocable. Once an irrevocable
letter of credit is established with the customer, it can only be modified or revoked with
the customer’s consent. Once it is established with the beneficiary, a letter of credit can
be modified or revoked only with the beneficiary’s consent.
Once a revocable letter of credit is established, it can be modified or revoked by the
issuer without notice to, or consent by, the customer or the beneficiary.
11. 1. Each signature on a certificated security, in a necessary endorsement, on an initial
transaction statement or on an instruction is admitted.
2. If the effectiveness of a signature is at issue, the burden of establishing effectiveness
is on the party claiming under the signature. The signature is presumed to be genuine or
authorized
3. If signatures on a certificated security are admitted or established, presentation
of the security entitles the holder to recover on it, unless the defendant establishes a
defense or a defect related to the validity of the security.
4. If signatures on an initial transaction statement are admitted or established, any facts
presented in the statement are presumed to be true at the time it was issued. The issuer
is free to show that later events changed the stated facts.
5. After it is shown that a defense or defect exists, the plaintiff must establish the fact
that the defense or defect is ineffective against him
12. The seller may recover the price of:
1. certificated securities accepted by the buyer
2. uncertificated securities that have been transferred to the buyer or a person
designated by the buyer
3. other securities, if efforts at their resale would be unduly burdensome or there is no
readily available market for their resale
13. A secured transaction is a transaction in which a borrower or a buyer provides security
that an obligation will be fulfilled in the form of personal property to a lender or a seller.
14. A secured party is a lender, seller or other person in whose favor there is a security
interest.
15. 1. The debtor possesses rights in the collateral.
2. The debtor has authenticated a security agreement or the secured party has
possession of the collateral.
3. There must be an obligation for value to be performed or given by the creditor.

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Answers to Practice Challenge Questions

Matching Answers
1. 1. c; 2. a; 3. e; 4. b; 5. d
2. a. S; b. B; c. B; d. S; e. S; f. S; g. B; h. B
3. a. C; b. B; c. C; d. B

Chapter 2 Answers
1. True
2. False—Community property states allow the Widow’s Right of Election in which the
surviving spouse gets a larger share of the property than the will reflected.
3. False—Joint tenants includes the right of survivorship—tenants in common does not.
4. True
5. False—Partial revocation must be a duly signed and attested instrument.
6. False—Children cannot make a will.
7. False—In joint tenancy, both parties have the right to be on the entire property.
8. False—Proof of fraud or mistake sometimes permits an irrevocable trust to be changed.
9. True
10. True
11. True—In a living trust, the settlor can also be the trustee and beneficiary.
12. False—The trustee cannot act for his own interests.
13. True
14. True
15. True
16. True
17. True
18. True
19. False—An agent can release simpler, nondiscretionary tasks to a subagent.
20. False—The agent (salesman) isn’t responsible for the bad acts of his principal.
21. False – Often, independent contractors work without the principal’s direction and
therefore the principal isn’t liable for the independent contractor’s torts.
22. False—Most powers of attorney have a specified scope which the agent cannot
overstep.
23. True—If the principal ratifies the agent’s acts, then the principal is liable.
24. True
25. True
26. True
27. False—A constructive condition which is substantially performed does not amount to
breach.

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Certified Bank Auditor Examination Review — Volume 7

28. False—Promissory estoppel sometimes permits enforcement of a one-sided promise.


29. False—Assignment, novation and third-party beneficiaries allow suit on a contract.
30. True
31. False—Except for those listed in the statute of frauds section, unwritten contracts can be
enforced. However, it’s always better to write any contract.
32. True
33. False – One-year term is the cut off for the writing requirement under the statute of frauds.
34. True
35. False—The proceeds can be assigned, but not the policy itself.
36. True—This is an example of the right of subrogation.
37. False—Property can be insured by mortgagors or leaseholders.
38. True
39. False—There is no legal right of subrogation in life insurance, only accident and property
insurance.
40. False—In bankruptcy, the policy’s cash value can often be part of the policy owner’s assets.
41. True
42. False—If the insured dies by suicide within a certain time period, the policy is not required to pay.
43. True
44. True
45. True
46. False—Some state laws and some policies allow a grace period for late payments to still be
applied to the policy.
47. False—General partners are personally liable for any partnership obligations which cannot be
met by the partnership.
48. False—General partners have more control over the business than limited partners.
49. True
50. True
51. True
52. True
53. False—Usually limited partners have minimal control of the partnership, thus an additional limited
partner doesn’t significantly change the control structure of the partnership.

124
Answers to Practice Challenge Questions

Answers to Multiple Choice Questions


1. b 37. b
2. a 38.a
3. c 39. c
4. b 40. a
5. C 41. b
6. b 42. c
7. b 43. c
8. d 44. b
9. a 45. b
10. b 46. a
11. c
12. b
13. c
14.b
15.a
16. c
17.b
18. a
19.c
20. d
21. b
22. b
23.a
24. d
25. c
26.a
27. c
28. b
29. a
30. b
31.b
32. c
33. b
34. c
35. b
36. c

125
126
Glossary of Terms

Certified Bank Auditor

Glossary
Section 7 • Chapters 1–2

absolute guaranty—An absolute guaranty agreement comes into effect upon the default of
the principal. At that point the creditor may go directly to the guarantor to collect. In fact,
a creditor can initiate action against the guarantor at the same time it is initiated against the
principal.

accident insurance—Provides coverage against expense, suffer¬ing and loss of earnings


resulting from personal injury or property damage.

accommodation party—An individual who lends his name and credit to another party by
signing an instrument.

accord and satisfaction—An acceptable substitute to the original promised performances


An accord is an agreement whereby one party undertakes to perform (and the other to
accept) something different than what the original contract stated. Satisfaction means that
the substituted performance is completed.

actions— In judicial proceedings: recoupment, counterclaim, set off, suit in equity, and any
other proceedings in which rights are determined.

adequate assurance—A wri�en, convincing proof that a party will perform as promised.

administrator—An individual or a trust institution appointed by a court to se�le the estate


of a person who has died without leaving a valid will. If the individual is a woman, she is an
administratrix.

advising bank—Bank that gives notification of the issuance of a credit by another bank.

a�er-acquired property—Property acquired by a debtor at a later time and which can


become collateral.

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Certified Bank Auditor Examination Review — Volume 7

agency coupled with an interest—This relationship exists when the agent has an actual
beneficial interest in the property that is the subject ma�er of the agency (i.e., a mortgage or
security agreement).

agency coupled with an obligation—A source of reimbursement to the agent.

agency—A trustee may act for an individual in many capacities, such as depository agent,
escrow agent, advisory agent, custodian, managing agent, and a�orney in fact.

agent—The party who acts for the principal.

aggrieved party—A party entitled to pursue a remedy.

agreement—The bargain of the parties in fact as found in their language or inferred from
other circumstances, including course of dealing, usage of trade, or course of performance.

anticipatory repudiation—A refusal to perform which occurs before performance is due and
may be express or implied.

apparent authority—Acts that seem to have or are represented to have authority and may
therefore be legally binding.

apparent partner—A person (by words spoken or wri�en, or by conduct) who represents
himself as a partner in an existing partnership.

assignee—A person receiving the assets or transfers.

assignment— It involves transfer of assets (e.g., A/R) to a lending institution, or when


a party to a contract (assignor) transfers to a third party (assignee) his rights under the
contract.

assignor—A person giving the assets or transfers.

a�achment—The creation of a security interest in property occurring when the debtor


agrees to the security, receives value from the secured party, and obtains rights in the
collateral.

automatic perfection—The a�achment of the security interest without any further action
being required, also called perfection by a�achment.

automobile insurance—Indemnifies against loss or damage to an automobile from collision,


the�, windstorm and fire, plus damage and personal injury caused to others.

bank—Any person engaged in the business of banking including a savings bank, savings
and loan association, credit union, and trust company.

bankruptcy schedule—Lists the debtor’s secured and unsecured creditors, all of his property,
any property he claims is exempt and is a statement of the debtor’s affairs.

bankruptcy—Legal process by which a debtor’s property and debts are resolved.

128
Glossary of Terms

bargained-for consideration—Legally validates that there was some sort of exchange at the
basis of the mutual assent.

bearer paper—Negotiable instrument where payment will be made to anyone who


pos¬sesses or bears the instrument.

bearer—The person in possession of a negotiable instrument, document of title, or security


payable to the bearer or the endorsed in blank.

beneficiary— Person for whose benefit a trust is created or the person to whom the amount
of an insurance policy or annuity is payable.

bequest—A gi� by will of personal property. Devises and bequests are further subdivided
into specific, general, and residuary.

bilateral contract—A bilateral contract is a promise exchanged for another promise, in other
words, mutual promises.

bill of lading—A document evidencing the receipt of goods for shipment issued by a person
engaged in the business of transporting or forwarding goods.

blank endorsement—The endorser’s (customer’s) signa¬ture and converts order paper to


bearer paper.

blanket fire insurance policy—A fire insurance policy which covers a class of property that
may be changing, such as inventory, rather than a specific piece of property.

blanket fire insurance—Covers a class of property which may be changing, such as


inventory, rather than a specific piece of property.

branch—Includes a separately incorporated foreign branch of a bank.

broker—An agent with spe¬cial, limited authority to obtain a customer for an owner who
wants to sell or exchange property.

burden of establishing a fact—The task of convincing the triers of the fact that the existence
of the fact is more probable than its nonexistence.

buyer in ordinary course of business—A person, who in good faith and without knowledge
that the sale to him is in violation of the ownership rights or security interest of a third party
in the goods, buys in ordinary course from a person in the business of selling goods of that
kind.

buy sell agreements—A method whereby the surviving partner(s) can buyback (i.e.
purchase) the interest of the deceased partner, or the remaining partner or partners can
purchase the interest of the withdrawing partner.

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Certified Bank Auditor Examination Review — Volume 7

captive insurance company—An insurance company that has been set up to provide
coverage at a lower cost than available by going through the general insurance market. The
company’s stock is controlled by one interest or a group of related interests so as to provide
coverage for their business operations. A captive insurance company may be a nonadmi�ed,
nonresident or foreign insurer. Sometimes it may provide reinsurance to a self-insure or a
domestic company. Source: coverageglossary.com

certificated security—A share, participation or other interest in the property of an enterprise


of the issuer; or an obligation of the issuer represented by an instrument issued in bearer or
registered form of a type commonly traded on securities exchanges or markets; or typically
recognized in the areas in which it is issued or dealt as a medium for investment; or by its
terms divisible into a class or series of shares, participation, interests or obligations.

certification—The usual method of accepting a check., where the bank becomes the
principal debtor because the bank appropriates from the depositor’s account the necessary
funds to pay the instrument.

charitable trust—A trust that can benefit an indefinite group and can have perpetual
existence.

cha�el paper—Writing or writings that provide evidence of both an obligation to pay money
and a security interest in or a lease of specific goods, also called a security agreement.

claim—A debt or right to payment from the debtor that is held and asserted by the creditor.

clearing corporation—A person that is registered as a clearing agency under the federal
securities laws, a federal reserve bank, or any other person that provides clearance of
se�lement services with respect to financial assets that would require it to register as a
clearing agency under the federal securities laws but for an exclusion or exemption from the
registration requirement.

clearinghouse—An association of banks or other payors who regularly clear items.

coguarantors—People who are jointly and severally liable to a creditor.

coinsurance clause—A clause that requires the owner/insured to bear a certain percentage of
the loss when he fails to carry complete coverage.

collateral—Pledged by a borrower to secure payment on a loan. Whether negotiable or


nonnegotiable, it should have sufficient value to secure loan payment and be in a form
that can be converted to cash, or specific property that a borrower pledges as security for
the repayment of a loan. The borrower agrees that the lender will have the right to sell the
collateral for the purpose of liquidating the debt if the borrower fails to repay the loan at
maturity or otherwise defaults under the terms of the loan agreement. There are two types
of collateral: tangible and intangible.

collecting bank—Any bank handling an item for collection except the payor bank.

commercial paper—Unsecured promissory note with a fixed maturity.


130
Glossary of Terms

community property—Property held jointly by a husband and wife. Source: Merriam-


Webster, 10th ed.

compensated guarantors—Guarantors who receive some pay or other consideration in


direct exchange for his contract with the creditor (e.g., bonding companies).

compensatory damages—Damages designed to compensate the aggrieved party for his loss,
also called general damages.

conditional guaranty—A conditional guaranty agreement requires that the other acts
(additional to the default of the principal) occur before the guarantor can be held liable.

conditional liability—The secondary liability of parties, such as drawers and endorsers.

confirming bank—Bank that engages either that it will itself honor a credit already issued by
another bank, or that such a credit will be honored by the issuer or a third bank.

conglomerate merger—Parties who were neither former competitors nor in the same supply
chain.

consequential damages—Damages that arise from special circumstances surrounding a


contract and are not normally foreseeable, also called special damages.

conservator—The personal representative of a living but mentally incompetent person.

consideration—The inducement to a contract or other legal transaction; specifically : an act


or forbearance or the promise thereof done or given by one party in return for the act or
promise of another. Source: Merriam-Webster, 10th ed.

conspicuous—A term or clause wri�en, displayed or presented in such a manner that a


reasonable person against whom it is to operate ought to have noticed it.

constructive condition—Part of the detailed interaction between two parties who have
contracted. One party’s performance of a constructive condition triggers the other party’s
duty to start performing his side of the bargain.

constructive trust—A trust created by a court of equity for the purpose of preventing unjust
enrichment as in the case where a transfer of property is obtained by fraud or violation of
some fiduciary duty.

consumer goods—Those goods bought primarily for personal, family or household


purposes.

consumer—An individual who enters into a transaction primarily for personal, family or
household purposes.

continuing guaranty—A continuing guaranty agreement covers a contemplated series of


ongoing transactions over a period of time.

contract—A commitment concerning the future conduct of the parties.

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Certified Bank Auditor Examination Review — Volume 7

course of dealing—A course of dealing in a previous transaction between parties which


establishes a common basis of understanding for interpreting their expressions and other
conduct.

cover—In revocation of goods: to purchase the needed goods from another source to
substitute for those due from the seller.

credible witness—One who is competent to testify to support a will.

creditor—A creditor includes a general creditor, a secured creditor, a lien creditor, and any
representative of credi¬tors, including an assignee for the benefit of creditors, a trustee in
bankruptcy, a receiver in equity, and an executor or administrator of an insolvent debtor’s or
assignor’s estate.

creditor—An entity to whom a debtor owes money.

creditor beneficiary—A third party for whom a promisee has contracted for a promise to
pay a debt.

creditor—The party entitled to receive payment or performance from the principal or


obligor, also called an obligee.

cure—As a result of the rejection of goods: a right which allows the seller to correct the
defective performance.

custodian bank—A bank or trust company that is supervised and examined by the state or
federal authority having supervision over banks and is acting as custodian for a clearing
corporation.

customer—A buyer or other person who causes an issuer to issue a credit.

debtor—An entity who owes money or to which the bankruptcy case pertains.

defendant—A person in the position of defendant in a counterclaim, cross-claim or third-


party claim.

delivery—The voluntary transfer of possession of instruments, documents of title, cha�el


paper or securities.

demand paper—A negotiable instrument that does not specify a due date. An example of
demand paper is a check.

deposit accounts—Time deposits, demand deposits, savings deposits, passbooks, and share
dra�s (a Certificate of Deposit is not a deposit account).

depository bank—The first bank to take an item even though it is also the payor bank,
unless the item is presented for immediate payment over the counter.

devise—A gi� of real property by will of real estate.

132
Glossary of Terms

disclosed principal—An agent for a disclosed principal reveals the principal’s identity.

dissolution—The legal destruction of the existing partnership relation.

doctrine of cy pres (as nearly as)—A rule that provides that if a particular charitable purpose
cannot be fulfilled in the manner directed by the se�lor, the court can carry out the general
charitable intention by prescribing the application of the trust property to another charitable
purpose consistent with the original.

document of title—Any document which in the regular course of business or financing is


treated as adequately evidencing that the person in possession of it is entitled to receive,
hold and dispose of the document and the goods it covers, including a bill of lading, dock
warrant, dock receipt, warehouse receipt or order for the delivery of goods.

documentary demand for payment—An honor conditioned upon presentation of a


document (i.e., a paper such as a document of title, security, invoice, certificate, etc.), also
called a documentary dra�.

documentary dra�—An honor conditioned upon presentation of a document (i.e., a paper


such as a document of title, security, invoice, certificate, etc.), also called a documentary
demand for payment.

donee beneficiary—A third party for whom the promisee purchased the promise as a gi�.

dormant partner—A partner who is both silent and secret.

dra�—A signed wri�en order addressed by one person (the drawer) to another person (the
drawee) directing the la�er to pay a specified sum of money to the order of a third person
(the payee). Dra� is also called a bill of exchange.

due diligence—The care that a reasonable person exercises under the circumstances to avoid
harm to other persons or their property. Source: Merriam-Webster, 10th ed.

economic expectancy—A verification of a pecuniary link between the parties when insuring
the life of a more remote family member.

endorsers—Legal signatory on the bank of an instrument. An endorsement is required on a


negotiable instrument to transfer and pass title to another party, who becomes a holder in
due course.

endowment policy—A policy where the insured is required to pay premiums for a certain
number of years.

equipment—Those goods that are used or purchased primarily for use in a business, in
farming, in a profession, or by a nonprofit organization or government agency, (also serves
as a catchall for all other goods which defy classification).

estate— The property a person owns and protects.

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Certified Bank Auditor Examination Review — Volume 7

estoppel—A legal bar to alleging or denying a fact because of one’s own previous actions or
words to the contrary. Source: Merriam-Webster, 10th ed.

exclusive contract—A contract in which the seller agrees to sell a product to a buyer on the
condition that the buyer will not purchase products from the seller’s competitors, also called
a tying contract.

executed performance contract—A contract that has been fully performed by the contracting
parties.

executor—An individual or a trust institution nominated in a will and appointed by a court


to se�le the estate of the testator is said to be the executor. If a woman is appointed, she is
referred to as an executrix.

executory performance contract—A contract that has yet to be performed by the contracting
parties.

exemplary damages—Damages awarded to one party in order to punish the other’s conduct
and to deter others from the same conduct in the future. Most o�en awarded when the
breach is fraudulent, oppressive or malicious, also called punitive damages.

express contract—When the parties state their agreement orally or in writing.

express private trust—A fiduciary relationship with respect to property.

express repudiation—A clear, positive unequivocal refusal to perform.

express warranty—Any affirma¬tion of fact or promise which is not just sales talk or an
opinion and which becomes part of the bargain. The buyer does not have to prove reliance
on this affirmation and the seller does not have to intend to create a warranty.

factor—An agent who has possession and control of another’s personal proper¬ty and is
authorized to sell that property.

failure to perform—In contracts: doing a poor quality job, a breach of contract.

farm product—includes crops and livestock, supplies used or produced in farming


operations, and the products of crops or livestock in their unmanufactured state (co�on,
milk, wool, etc.)

fault—A default, breach, wrongful act or omission.

fidelity bond—Provides coverage for losses resulting from the dishonest acts of people.

fidelity insurance—Insures against loss from dishonesty of employees or people in positions


of trust, also called guaranty insurance.

financing statement—A document containing the addresses of both the debtor and the
secured party. The financing statement also contains a description of the collateral.

134
Glossary of Terms

fire insurance—Covers direct fire damage plus any indirect fire damage such as damage
from smoke, water or chemicals.

friendly fire—Damage caused by smoke from a fire in a fireplace.

frolics—When a servant neglects his master’s business and pursues his personal interests.

fungible—Being of such a nature that one part or quantity may be replaced by another equal
part or quantity in the satisfaction of an obligation. Source: Merriam-Webster, 10th ed.

general agent—An agent who is authorized to conduct a series of transactions in the


continuous service of the principal.

general damages—Damages designed to compensate the aggrieved party for his loss, also
called compensatory damages.

general guarantor—A guarantor who is not limited to a single, specific creditor.

general intangible—goodwill, patents and copyrights.

general legacy—A legacy that can be satisfied by the delivery of any property of the general
type.

general partner—A partner who is liable for all partnership liabilities plus any unpaid
contributions.

general power of a�orney—A power of a�orney which gives the agent the authority to act in
most respects for the principal and has a broad scope of authority.

genuine—Free of forgery or counterfeiting.

good faith—Honesty in fact and the observance of reasonable commercial standards of fair
dealing.

good faith purchaser—One who buys the collateral and is unaware of the existence of any
security interest in the property.

goods—All items which are moveable and personal property of a tangible, physical nature.
They also include the unborn young of animals, growing crops, and standing timber to be
cut.

grace period—A period of time a�er payment is due within which payment can be made
without the policy lapsing.

guarantor—any party that promises the creditor to be liable in case of the principal’s failure
to pay or perform, also called a surety.

guardian—The personal representative of a living person who is a ward (generally a child).

holder in due course—The person who obtains title to a transferred negotiable instrument.

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Certified Bank Auditor Examination Review — Volume 7

holder—Person in possession of a negotiable instrument that is payable either to the bearer


or to an identified person that is the person in possession.

horizontal merger—A merger between former competitors.

horizontal restraint—An agreement among competitors such as manufacturers, retailers


and wholesalers.

hostile fires—Unintentional fires or fires that have le� the intended burning spot.

Identified (identification)—In the UCC: designated as the specific goods that will be utilized
in the transaction.

illusory promise—A statement that purports to be a promise but is not because the promisor
need not perform it.

impaired claim—A debt that the bankruptcy proceedings either decrease or delay.

implied repudiation—When the promisor makes it impossible for himself to perform.

implied warranties—A warranty that arises as a ma�er of law and is legally present unless
clearly disclaimed or negated. Liability for the breach of an implied warranty is based on the
public policy of protecting the buyer of goods.

implied warranty of fitness—A warranty created when the seller knows of the particular
use of the good and knows the buyer is relying on the seller’s skill or judgment to select or
furnish suitable goods. The implied warranty of fitness is applicable to both merchants and
nonmerchants.

implied warranty of merchantability—Warranty that the goods being sold are fit for the
ordinary purpose for which goods of this type are used and will pass without objection in
the trade. This warranty applies to new and used goods in most states unless the warranty is
modified or excluded.

implied in fact contract—When the agreement is manifested only by the two parties’
conduct, but not in any writing.

implied in law contract—This is similar to an implied-in-fact contract For example, when


A’s conduct (mis)leads B to think they have a certain firm agreement and B relies upon that
agreement B then gives some benefit to A, but A refuses to honor the unspoken agreement,
see also quasi contract.

inability to perform—An excuse from liability for a contract breach, where the defending
party answers that the reason for the breach was because of an inability to perform, not a
failure or refusal to perform.

incontestability clause—A clause where a�er a certain period of time, typically two years, a
policy cannot be contested because of concealment or misstatements.

independent contractor—A person whose services are contract¬ed for by another person.
136
Glossary of Terms

infringement—An act or claim that interferes with an exclusive right of an owner.

insider—A debtor’s relatives, partners, or (if debtor is a corporation) directors or executives.

insolvency proceedings—Any assignment for the benefit of creditors or other proceedings


intended to liquidate or rehabilitate the estate of the individuals involved.

insolvent—A person who either has generally ceased to pay his debts in the ordinary course
of business other than as a result of a bona fide dispute, or who cannot pay his debts as they
become due, or who is insolvent within the meaning of the federal bankruptcy law.

instruments—Negotiable instruments, securities such as stocks and bonds, and any other
writing that evidences a right to the payment of money and is not itself a lease or security
agreement; may be negotiable dra�s, checks, certificates of deposit and promissory notes.

insurable interest—The relationship between the policy owner, the insured and the event.

insurance—Coverage by contract whereby one party undertakes to indemnify or guarantee


another against loss by a specified contingency or peril. Source: Merriam-Webster, 10th ed.

intangible collateral—Collateral that is an account (any right to payment for goods sold
or leased or for services rendered, whether or not earned by performance), or any general
intangible.

intentional torts—A tort prompted by a feeling of ill will.

inter vivos—A trust created by a transfer of property during one’s lifetime, also called a
living trust.

interlocking directorates—Having the same individual on two or more board of directors.

intermediary bank—Any bank to which an item is transferred in the course of collection


except the depository or payor bank.

intestate— Without having made and le� a valid will.

inventory—Goods that a person holds for sale or lease and that are to be furnished under a
contract of service, including raw materials, works in process, finished goods, and materials
used or consumed in a business

involuntary bankruptcy—A bankruptcy that is started when one or more of a debtor’s


creditors files a petition.

irrevoca¬ble le�er of credit—A le�er of credit which can only be modified or revoked with
the customer’s or beneficiary’s consent.

issuer—A bank or other person issuing a credit.

joint and several liability—Where two people are responsible for an action and can share
liability for the injury.

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joint tenancy—Holding of property by two or more persons in such a manner that, upon the
death of one joint owner, the survivor(s) take(s) the entire property.

legal detriment—A promise to perform an act that one had no prior legal obligation to
perform It can also be to refrain from doing something that one could legally do and had no
prior legal obligation not to do.

legal relief—A private action for money damages.

legal theory of estoppel—If a person by words spoken or wri�en or by conduct represents


himself as a partner in an existing partnership, that person is not a partner but is liable to
any party to whom such representation has been made.

le�er of credit—A formal document in le�er form addressed to and authorizing the
beneficiary (for example, an exporter) to draw a dra� to a stated amount of money against
the accepting bank.

liability insurance—Protects the insured against liability for accidental damage to people or
property and typically includes the duty to defend the insured in a lawsuit brought by third
parties.

liability—Probable future sacrifice of economic benefits arising from the present obligations
of a particular entity to transfer assets or provide services to other entities on the future as a
result of past transactions or events.

life insurance—insurance providing for payment of a stipulated sum to a designated


beneficiary upon death of the insured. Source: Merriam-Webster, 10th ed.

Limited Liability Companies (LLC)—A partnership where there is no distinction between


general or limited partners, all partners are considered members.

Limited Liability Partnerships (LLP)—A partnership where there are both general partners
and limited partners.

limited partner—A partner who is obligated to the partnership to make any contribution
stated in the certificate.

limited payment life insurance—Requires the payment of premiums over a fixed number of
years and the policyholder is insured for life.

liquidated damages—The money damages applicable in the case of a breach.

living trust—A trust created by a transfer of property during one’s lifetime, also called inter
vivos.

locus poenitentiae—A person who repents before performing any illegal part of the contract,
also called place for repentance.

maker—Regarding negotiable instruments: the primary party.

138
Glossary of Terms

malpractice insurance—A form of personal liability insurance used by doctors, lawyers


and other professionals. Protects against liability for harm caused by errors or negligence in
performing work.

marshalling of assets—A rule which comes into play when a firm is insolvent and a court of
equity becomes responsible for distribution of the partnership’s assets.

master—In tort liability: one who employs another person.

merchant—A person who deals in the goods being sold or who holds himself out as having
knowledge or skill peculiar to the goods involved in the transaction.

midnight dead¬line—The time by which a bank must provide notice of dishonor: before
midnight of the next banking day following the day the bank received the item.

money damages—Nominal damages, compensatory damages, consequential damages,


punitive damages or liquidated damages.

money—A medium of exchange currently authorized or adopted by a domestic or foreign


government. This includes a monetary unit of account established by an intergovernmental
organization or by agreement between two or more countries.

mutual agreement—In contracts: the parties may agree in their contract to terminate the
relationship at a definite point in time or on completion of a task. The parties may also
mutually agree to cancel their relationship.

mutuality of obligation—Each party is bounded or neither party is bound.

negotiable instruments—(1) It must be in writing and signed by the maker or drawer; (2)
it must contain an unconditional promise or order to pay a certain sum in money; (3) it
must be payable on demand; (4) it must be payable to order or to bearer; and (5) when the
instrument is addressed to the drawee, he must be named or otherwise indicated therein
with reasonable certainty.

nominal damages—Symbolize the wrong done by the mere breach of con¬tract and are
typically one dollar.

nontrading partnership—Engages in the production of merchan¬dise from raw materials or


sells services.

note—A type of negotiable interest which is a wri�en promise to pay (other than a certificate
of deposit) by a party—the maker—a sum certain in money to the order of another
party—the payee or the bearer of the note. Hence this form of commercial paper includes
promissory notes, bank certificates of deposit, and cashier’s checks.

notice of breach—Notice of any alleged breach of express and implied warranties.

notice of dishonor—Notice that a negotiable instrument has not been honored by the bank.

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Certified Bank Auditor Examination Review — Volume 7

novation—An agreement whereby a new party is substituted for an original party to a


contract.

obligor—The party who borrows money or assumes direct responsibility to perform a


contractual obligation, also called principal or principal debtor.

offeree—The party to a contract who responds to the final exchange of promises, (i.e., the
one who receives the offer and accepts or rejects it), also called a promisee.

offeror—The party to a contract who initiates the final exchange of promises, (i.e., the one
who makes the offer), also called a promisor.

option contract—An contract offer that cannot be revoked for a certain time period so that
the offeree can decide whether or not to accept it.

option—Agreement that permits one to buy or sell something within a stipulated time
according to the terms of the agreement.

order of relief—Court order from the bankruptcy judge (when he decides that the debtor is
entitled to bankruptcy law protection) authorizing the bankruptcy, the trustee’s actions, the
selling of assets and the payment of creditors.

order paper—A negotiable instrument which states that payment will be made to the order
of a designated payee or to anyone that such a payee may order or direct. Order paper can
be negotiated only by both endorsement and delivery.

ordinary life insurance—Insurance that requires the insured to pay premiums over his life.
A fixed sum is then paid to the beneficiary on the insured’s death, also called whole life
insurance.

organization—In the code, an organization is defined as a person other than an individual.

overdra�—The amount by which the sum of checks paid against an account exceeds the
balance in the account.

Parol Evidence Rule—Prohibits the introduction of subsequent evidence that would alter a
wri�en contract.

partial integration rule—The parties intend the writing to be final on the terms as wri�en
but not necessarily complete on all terms of the agreement.

partially disclosed principal—The third party knows that a principal exists but does not
know the principal’s identity.

partnership at will—When a definite term of duration of a partnership is not specified in the


agreement.

partnership—An association of two or more people to carry on as co owners of a business


for profit.

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Glossary of Terms

party—In the UCC: a person or business that has engaged in a transaction or made an
agreement.

payee—One to whom money is or is to be paid. Source: Merriam-Webster, 10th ed.

payor bank—The drawee of a dra�.

perfection by a�achment—A type pf perfection which requires only the a�achment of the
security interest without any further action being required, also called automatic perfection.

perfection—Pu�ing the world on notice that a secured party has a security interest in a
property.

performance bonds—Bonds that provide coverage against losses resulting from the failure of
a contracting party to perform the contract as agreed.

performance—What the promisee/offeree and promisor/offeror agree to do for one another.

personal defense—An ordinary defense in a contract action—such as failure of consideration


or nonperformance of a condition—which argues that the maker or drawer of a negotiable
instrument is precluded from raising against a person who has the rights of a holder in due
course.

person—In the UCC: an individual; corporation; trust; business trust; estate; partnership;
limited liability company; association; joint venture; government; governmental subdivision,
agency or instrumentality; public corporation; or any legal or commercial entity.

pledge (or pledge transaction)—The simplest type of secured transaction where a borrower
gives the physical possession of his property (i.e., diamond ring) to a lender as security for
a loan. If the loan is not repaid, the lender can sell the property to satisfy the obligation or
debt.

power of a�orney—A formal document for conferring authority on an agent. Typically,


signed by the principal in the presence of a notary public.

present value—The amount as of a date certain of one or more sums payable in the future,
discounted to the date certain by use of either an interest rate specified by the parties if that
rate is not manifestly unreasonable at the time the transaction is entered into or, if an interest
rate is not so specified, a commercially reasonable rate that takes into account the facts and
circumstances at the time the transaction was entered into.

presenting bank—Any bank presenting an item to a payor bank.

presentment—The act of presenting to an authority a formal statement of a ma�er to be dealt


with; specifically : the notice taken or statement made by a grand jury of an offense from
their own knowledge without a bill of indictment laid before them, or the act of offering
at the proper time and place a document (as a bill of exchange) that calls for acceptance or
payment by another. Source: Merriam-Webster, 10th ed.

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primary parties—Makers of notes and the acceptors of dra�s and are the parties who will
actually pay the instruments.

principal debtor—The party who borrows money or assumes direct responsibility to


perform a contractual obligation, also called principal, or obligor.

principal—The party who borrows money or assumes direct responsibility to perform a


contractual obligation, also called principal debtor, or obligor. Or, the party who controls the
agent and for whom the agent acts.

promisee—The party to a contract who responds to the final exchange of promises, (i.e., the
one who receives the offer and accepts or rejects it), also called an offeree.

promisor—The party to a contract who initiates the final exchange of promises, (i.e., the one
who makes the offer), also called a offeror.

promissory estoppel—The legal means used to enforce such promises almost as though they
were contracts.

protest—A formal method of fulfilling the conditions precedent. Protest is required only for
dra�s that are drawn or payable outside the U.S. The protest is a certificate which states that
an instrument was presented for payment or acceptance and was dishonored, and explains
why the instrument was not accepted or paid.

punitive damages—Punitive damages are awarded to one party in order to punish the
other’s conduct. They are also awarded to deter others from the same conduct in the future.
Punitive damages are most o�en awarded when the breach is fraudulent, oppressive or
malicious, also called exemplary damages.

purchaser—A person that takes by purchase.

purchase—To take by sale, lease, discount, negotiation, mortgage, pledge, lien, security
interest, issue or re issue, gi�, or any other voluntary transaction which creates an interest
in property.

qualified endorsement—The transferor disclaims any liability on the instrument.

quasi contract—This is similar to an implied-in-fact contract. For example, when A’s


conduct (mis)leads B to think they have a certain firm agreement and B relies upon that
agreement B then gives some benefit to A, but A refuses to honor the unspoken agreement,
see also implied in law contract.

ratification—The principal—with knowledge of all material ma�ers—has expressed or


implied adoption or confirmation of a contract entered into on his behalf by a person with
no authority to do so. The principal’s conduct, inconsistent with the intent to reject the
contract, implies ratification.

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Glossary of Terms

real defense—A type of defense that is good against any possible claimant, so the maker or
drawer of a negotiable instrument can raise it even against a holder in due course. Examples
are: fraud in fact, forgery of a necessary signature, etc.

reasonable time—Any time which is not manifestly unreasonable may be fixed by


agreement. A reasonable time depends on the nature, purpose and circumstances of an
action. If no time is agreed upon, it is within a reasonable time.

record—Information that is inscribed on a tangible medium or that is stored in an electronic


or other medium and is retrievable in perceivable form.

refusal to deal—Selling to one firm while refusing to deal with another.

refusal to perform—A type of breach of contract.

registered form—Re: certificated securities: Specifies a person entitled to the security or the
rights it represents, its transfer is registered on books maintained for that purpose by or on
behalf of the issuer, or if the security so states.

remedy—Any remedial right to which an aggrieved party is entitled with or without resort
to a tribunal.

replevin—The recovery by a person of goods or cha�els claimed to be wrongfully taken or


detained upon the person’s giving security to try the ma�er in court and return the goods if
defeated in the action, or the writ or the common-law action whereby goods and cha�els are
replieved. Source: Merriam-Webster, 10th ed.

representative—A person empowered to act for another including an agent; an officer of a


corporation or association; and a trustee, executor or administrator of an estate.

rescission—When the court disaffirms the contract and restores the parties to the position
they occupied before making the contract.

residuary gi�—A gi� that includes all the personal property not included in the specific or
general bequests or devises.

respondent superior—A concept which states that a master is liable to third persons for torts
commi�ed by his servants within the scope of their employment and in pursuance of the
master’s business.

restitution—When the court requires a party who has been unjustly enriched to return an
unfairly-gained item or its value.

restricted guaranty—A restricted guaranty agreement is for a specified single transaction or


specified group of transactions.

restrictive endorsement—Restricts the endorsee’s use of the instrument and does not prevent
further transfer or negotiation of the instrument. A restrictive endorse¬ment is o�en used
when a check is deposited in a bank for collection.

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resulting trust—A trust created by a court of equity when a party with legal title to property
is not intended to have it.

revocable le�er of credit—A le�er of credit that can be modified or revoked by the issuer
without notice to, or consent by, the customer or the beneficiary.

right—The same as a remedy.

sale on approval—In a consumer purchase: a transaction where the goods are delivered for
use.

sale on return—When goods are delivered for resale.

sale—In a sales transaction: title to goods exchanged for a price.

scienter—Intention to mislead.

secondary parties—Drawers of dra�s and checks and endorsers of any instrument.

secret partner—A partner who may advise management and participate in decisions, but his
interest is not known to third parties.

secured debt—A debt which is accompanied by giving the creditor an interest in property.

secured party—A lender, seller or other person in whose favor there is a security inter¬est.

secured transaction—A transaction in which a borrower or a buyer provides security in the


form of personal property to a lender or a seller that an obligation will be fulfilled.

security agreement—Writing or writings that provide evidence of both an obligation to pay


money and a security interest in or a lease of specific goods, also called cha�el paper.

security interest—An interest in personal property or fixtures which secures the payment or
the performance of an obliga¬tion.

self-insurance—The advance financial preparation for possible losses and not a distribution
of risk, not true insurance.

semi intangible collateral—Collateral that has physical existence but is simply


representative of a contractual obligation (i.e., negotiable instruments).

send—A properly addressed writing, record or notice which is deposited in the mail or
delivered for transmission by any of the usual means of communication and with postage or
cost of transmission provided.

servant— In tort liability: a person who is employed with or without pay to perform
personal services for a master and is subject to the master’s right or power of control.

se�lor—An individual who makes a trust, also called a trustor.

sight dra�—A dra� that is payable on presentation to the drawee.


144
Glossary of Terms

signed—Any symbol executed or adopted by a party with present intention to authenticate a


writing.

silent partner—A partner who does not participate in management.

special agent—An agent who is not in the continuous service of the principal.

special damages—Damages that arise from special circumstances surrounding a contract


and are not normally foreseeable, also called consequential damages.

special endorsement—An endorsement that specifies the party (endorsee) to whom or to


whose order the endorsement makes the instrument payable. Further negotiation requires
the endorsee’s signature.

special guarantor—A guarantor who limits his promise to a single transaction and/or a
specific creditor. A special guarantor’s promise can¬not be assigned to a new creditor.

special property interest—An interest where the buyer has (1) an insurable interest in the
goods, (2) the right to inspect the goods at a reasonable time and at the buyer’s expense, (3)
the right to sue for damages caused by any third party who wrongfully destroys or damages
the goods, and (4) the right to demand the goods upon offering the full contract price, if the
seller becomes insolvent within ten days of the buyer’s first payment.

specific devise—A gi� of particular property so identified as to distinguish it from other


property, also called a specific legacy.

specific legacy—A gi� of particular property so identified as to distinguish it from other


property, also called a specific devise.

specific performance—When the court requires the breaching party to do exactly what he
agreed to do under the contract.

stale check—A check that is over six months old.

state—A state means a state of the United States, the District of Columbia, Puerto Rico, the
United States Virgin Islands, or any territory or insular possession subject to the jurisdiction
of the United States.

subagent—A third party who has been delegated the duties of an agent by that agent.

subguarantors—A guarantor’s guarantor.

Subrogation—The right of an insurance company to assume an injured party’s legal claims


against third parties.

subsequent purchaser—A person who takes other than by original issue.

suicide clause—A clause in an insurance policy that states the policy will not cover the
insured’s suicide for a certain period of time. Typically this time period coincides with the
one used in the incontestability clause. A�er the time period expires, suicide is covered.

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surety—A surety is a guarantor or other secondary obligor.

suretyship—The relationship where one person agrees to be answerable for the debt or
default of another person.

tangible collateral—Physical property or goods.

tenancy by the entirety—Tenancy by a husband and wife in such a manner that, except in
concert with the other, neither husband nor wife has a disposable interest in the property
during the lifetime of the other.

tenancy in common—Holding of property by two or more people in such a manner that


each has an undivided interest which, upon his death, passes as such to his heirs or devisees
and not to the survivor(s).

tender—In contract law: the presentation of performance.

term life insurance—Covers the insured for a fixed number of years. If the insured dies
within that term, then the life insurance policy pays.

termination at will—When the agency agreement does not state a definite time period,
either the principal or the agent may terminate the relationship.

termination—The winding up process is completed.

term—The portion of an agreement which relates to a particular ma�er.

testamentary trust—A trust established by the terms of the will.

testator—Person who has made and le� a valid will at his death. If the individual is a
woman, she is a testatrix.

third party beneficiary—When one party contracts with a second party for the purpose of
conferring a benefit upon a third party.

title—All the elements constituting legal ownership, a legally just cause of exclusive
possession, the instrument (as a deed) that is evidence of a right, something that justifies or
substantiates a claim. Source: Merriam-Webster, 10th ed.

tort—A wrongful act other than a breach of contract for which relief may be obtained in the
form of damages or an injunction. Source: Merriam-Webster, 10th ed.

trading partnership—Engages in the business of buying and reselling merchandise.

transferor—One that conveys a title, right, or property. Source: Merriam-Webster, 10th ed.

146
Glossary of Terms

trust— Fiduciary relationship in which one person (the trustee) is the holder of the legal title
to property (the trust property) subject to an equitable obligation (an obligation enforceable
in a court of equity) to keep or use the property for the benefit of another person (the
beneficiary). An agreement by which an individual or a corporation as trustee holds title to
property for the benefit of one or more persons, usually under the terms of a will and other
wri�en agreement.

trustee— Individual or a trust institution that holds the legal title to property for the benefit
of someone else. Or, in bankruptcy law, a person responsible for managing the debtor’s
assets.

trustor—An individual who makes a trust, also called a se�lor.

tying contract—A contracts in which the seller agrees to sell a product to a buyer on the
condition that the buyer will not purchase products from the seller’s competitors, also called
an exclusive contract.

unauthorized signature—A signature made without actual, implied, or apparent authori¬ty.


This includes a forged signature.

uncertificated security—A share, participation or other interest in property; an enterprise


of the issuer; or an obligation of the issuer which is not represented by an instrument and
whose transfer is registered on books maintained for that purpose by or on behalf of the
issuer; of a type commonly traded on securities exchanges or markets; either one of a class
or series; or by its terms divisible into a class or series of shares, participation, interests or
obligations.

uncompensated guarantors—A guarantor who doesn’t receive pay or anything else in direct
exchange for his contract with the creditor, (e.g., a cosigner on a loan).

undisclosed principal—The principal’s existence is a secret from the third party.

unilateral action—Either party to an agency agreement acting independently to terminating


an agency even though he has no right.

unilateral contract—A promise exchanged for an act of performance, (i.e., the offeror
promises the offeree a benefit if the offeree performs some act).

unimpaired claim—A debt that is essentially unchanged by the bankruptcy proceedings.

unity of interest—Each owner having equal shares of the property.

unity of possession—Each owner having the right to possess all of the real estate subject to
the owner’s rights of possession.

unity of time—The joint tenants’ ownership must be created at the same time.

unity of title—The joint tenants must have the same estate created in the same manner.

147