2. EL DERECHO A LA INTIMIDAD Y LOS DERECHOS DE LA PERSONALIDAD COMO DERECHOS FUNDAMENTALES. DERECHOS FUNDAMENTALES
2.2. LOS DERECHOS DE LA PERSONALIDAD
2.4.8. Límites del derecho fundamental a la intimidad
unintention al; burden of proof
Cancellation; unintentional; burden of proof—inoperative but where an instrument or any signature appears to have been cancelled, burden of proof lies on party who alleges cancellation was made unintentionally or under mistake or without authority.
REQUISITES 1. Intentional 2. Made by holder
3. By tearing, burning or writing “cancelled”
Note intentionally burned by agent = discharged Payee with intention of destroying = discharged INTENTION essential element
CANCELLATION—not only drawing of criss-cross lines but also tearing, obliterations, erasures or burning. There must be intention to cancel.
WHEN CANCELLATION INOPERATIVE 1. Unintentional
2. Under mistake 3. Without authority
Unintentional— where notes where physically mutilated by payee who acted in outburst of temper without intent to cancel Mistake—where note was cancelled under supposition that it was fully paid when in fact it is not
Without authority—accepted by acceptor of bill less than amount claimed by holder and allowed the acceptor to cancel his signature
c. Any act that discharge simple contracts AR
T 123 1
Obligations are
extinguishe d
1. By payment or performance 2. By loss of thing due
3. By condonation or remission of debt
4. By confusion or merger of rights of creditors and debtor 5. By compensation
6. By novation
Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition and prescription, are governed elsewhere int his code.
Although these ways discharge the instrument as between immediate parties, they will not do so in the hands of an HDC.
Novation would discharge instrument
SEC 196, other acts that will discharge simple contract are to be determined by existing legislation.
Q: Will an extension of time granted by holder to debtor discharge instrument?
A: NO. Extension of time as a ground is omitted in SEC 119.
Q: Suppose one of persons principally liable secures note by mortgage without knowledge of other. Is instrument discharged?
A: NO.
d. Principal debtor becomes a holder REQUISITES:
a. Reacquisition must be by principal debtor b. In his own right—not in representative capacity c. At or after date of maturity
IN HIS OWN RIGHT—not in representative capacity
A maker buys from F indorsee, his own note, as an agent of a 3rd person
= X not discharged
Maker or acceptor becomes executor of holder, though executor had to account for amount as assets of estate Note was transferred to maker as collateral for separate debt due the maker
Maker reacquires old note in exchange of new note in payment
= Not discharged
WHEN INSTRUMENT REACQUIRED BEFORE MATURITY Reacquisition in his own right but before maturity
= Not discharged
= Merely constitute a negotiation back to principal debtor who (SEC 50) may renegotiate instrument DISCHARGE BY OPERATION OF LAW
If judgment is obtained on bill or note, bill or note is extinguished and merged in judgment
But judgment alone is not extinguishment between plaintiff and other parties not jointly liable with original defendant whether parties be prior or subsequent to defendant.
Discharge in bankruptcy releases a bankrupt from all his provable debts
= Discharge the bankrupt on all bills accepted but will not discharge other parties.
3. Discharge of persons secondarily liable 120 When
persons SECONDARI LY LIABLE are discharged
a. Any act which discharges instrument (SEC 119) b. Intentional cancellation of his signature by holder c. Discharge of prior party
d. Valid tender of payment by prior party
e. Release of principal debtor unless holder’s right of recourse against party secondarily liable is expressly reserved
f. By any agreement binding upon holder to extend time of payment or to postpone holder’s right to enforce instrument unless made with assent of party secondarily liable or unless right of recourse against party is expressly reserved.
121 Right of party who discharges instrument
SEC 121. Right of party who discharges instrument—where instrument is paid by secondarily liable, not discharged; but party paying is:
a. Remitted to his former rights as regard to all prior parties b. May strike out his own and all subsequent indorsements c. Negotiate instrument
EXCEPT
a. Where it is payable to order of 3rd person + has been paid by drawer
b. Where it was made/accepted for accommodation + has been paid by party accommodated
When persons SECONDARILY LIABLE are discharged Acts dischargingthe instrument SEC 119 Intentional
cancellation A maker; D payee; CDE to F holder
F intentional cancels signature of D = D is discharged Discharge of prior
party Discharge of D’s signature also discharges E as D is party prior to E
REASON: if E not discharged by D’s discharge, he is made to pay by F holder, he would not be able to enforce his right of recourse against D.
DISCHARGE BY OPERATION OF LAW NOT INCLUDED- discharge must be done by acts of holder NOT APPLICABLE:
a. Discharge by bankruptcy
b. Party not given due notice of dishonor c. By Statute of Limitations
Valid tender of
payment If D indorser validly tenders payment F refuses without justification
= D discharged
TENDER OF PAYMENT—act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due in satisfaction of such claim or demand without any stipulation or condition. But where instrument is payable tat a bank and indorser waived protest, fact that maker haad money on deposit in bank at maturity was not sufficient tender under SEC 70 and 87 to discharge indorser.
Notice must be brought to holder.
RELEASE OF PRINCIPAL DEBTOR If F holder releases A maker
= BCDE (secondarily liable) are also discharged a. Discharges the instrument
b. Deprives them of right of recourse against A maker
If on releasing A maker, F holder reserves his right of recourse against parties secondarily liable
= Not discharged
REASON: effect of reservation is implied reservation of their right of recourse against A maker
While holder cannot hold A liable, he can hold BCDE liable but they in turn can hold A liable should any of them be made to pay F.
Reservation of right must be expressed.
Release must be voluntary act of holder, not operation of law.
If release is NOT for value = Not discharge
EFFECT OF RELEASE ON ACCOMMODATION MAKER OR ACCEPTOR
GR: He is not discharged by holder’s release of principal debtor even if release be made with knowledge of true relation of aprties Release of AMaker/acceptor does not discharge principal debtor though latter occupies position of party secondarily liable
Extension of time GR: F holder agrees to extend time of payment, BCDE are discharged EXCEPTIONS
1. Where extension of time is consented to by party secondarily liable 2. Where holder reserves right of recourse
REQUISITES OF AGREEMENT OF EXTENSION OF TIME 1. Must be binding contract
2. Supported by valuable consideration 3. For definite period
4. Made with principal debtor, not 3rd party
Right of party who discharges instrument A drawer addressed to X drawee, payable to order of B Bill successively indorsed by BCDE, F holder
D indorser pays bill Q: What are the effects?
1 Instrument is not discharged but discharges D, party paying
2 D is remitted to his former rights against parties prior to him, such as CBA.
If D was formerly HDC, even if at time of payment he already had notice of defects of title, he can enforce his rights against any of them free from defenses, as he is remitted to his former rights.
But if original payee of note unenforceable for lack of consideration repurchases instrument after transferring it to HDC, paper becomes subject in payee’s hands to same defenses to which it would have been subject if paper had never passed through hands of HDC.
True where instrument is retransferred to agent of payee.
3 D can strike out his indorsement and subsequent indorsements of E and F 4 D can renegotiate instrument
EXCEPTIONS (not applicable to rule that instrument is not discharged):
Where drawer of certified check was required to take up check because of failure of drawee bank, instrument is not discharged and he is subrogated to rights of payee.
Party secondarily liable who pays cannot negotiate instrument:
1. If instead of D, A drawer pays and bill is payable to order of 3rd person, A can no longer negotiate instrument
2. If B payee is an accommodated party and B pays, he cannot negotiate bill as B is ultimate party and he does not have right of recourse against X drawee or A drawer
CHAP 8: Checks 1. Checks
85 Checks A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange payable on demand apply to a check.
Checks need not be presented for acceptance. These are always payable on demand and always drawn against a bank. In case of refusal by a drawee bank, payee or holder cannot compel drawee bank to pay because there is no privity of contract.
RECOURSE: Serve notice of dishonor to drawer or run after the drawer.
2. Distinguished from draft
Other BE Check
Not drawn on a deposit. It is not necessary that a drawer of a BE should have funds in the hands of the drawee.
It exists for circulation.
It is necessary that a check is drawn on a previous deposit. Otherwise, there would be fraud.
The bank is always a drawee and need not be presented for acceptance.
It exists for immediate payment.
Death of a drawer with knowledge of a bank, does not revoke the authority of the bank
to pay. Death of a drawer of a check, with knowledge by the bank, revokes the authority of the
banker to pay.
It may be presented for payment within a reasonable time after its last negotiation. It may be presented within a reasonable time after its issue. Checks become stale after 6 months from issue.
When does a check operate as an assignment?
A: A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank and the bank is not liable to the holder unless and until it accepts or certifies the check.
3. Relationship between drawer, drawee and payee Drawer Secondarily liable
He admits the existence of a payee and his capacity to indorse and engages that the instrument will be accepted or paid by the party primarily liable.
He only engages if the instrument is dishonored and proper proceedings are brought.
Drawee Primarily liable
He engages to pay according to the tenor of his acceptance.
He admits the existence of the drawer, the genuineness of his signature and his capacity and authority to draw the instrument and admits the existence of the payee and his capacity to indorse.
Payee Person who is named to receive the payment.
One who can indorse for further negotiation
4. Kinds of check Cashier’s and
manager’s check BE drawn by a bank upon itself and is accepted by its issuance.
It is treated as good as cash.
Drawee and drawer are one and the same.
BSP Circular 259 series of 2000: Pursuant to MB Resolution 11494 dated SEPT 1 2000, additional anti- money laundering rules and regulations for banks are issued as follows:
SEC 1. Issuance of cashier’s, manager’s or certified checks—Banks shall not issue cashier’s. manager’s or certified checks or other similar instruments payable to cash, bearer, fictitious payee or numbered account. When the person purchasing the above-mentioned instruments is not a regular bank client, the issuing bank shall require the purchaser to present his/her proof of residence together with his/her driver’s license, passport, employment ID or other photo ID. A register for cashier’s. manager’s or certified checks issued shall be maintained by the bank.