Essay on "Involved Rivera"

Essay 4 pages (1380 words) Sources: 3

[EXCERPT] . . . .

" (p. 36) Value is reported to involve "first…the gift of an instrument" although this does not ever create holder in due status" because for example if an unexecuted promise is all that is given then holder in due course status is not created even though in common law this would be sufficient consideration. (Whaley, nd, p. 37)

III. Is 'Any Kind' a Holder-In-Due-Course?

Whaley (nd) states that utilization of the terminology of the Uniform Commercial Code when applied to 'Any Kind' v. Talcott, results in Talcott being the check's 'maker or drawer' and the person who actually placed their signature on the draft "as a person ordering payment. §3-103(a)(3)." (p. 45) Though the check being sent by Federal Express to Guarino, Talcott is held to have issued the check to him, according to §3-105(a) which applies the definition to 'issue' as being "the first delivery of an instrument by the maker or drawer…for the purpose of giving rights on the instrument to any person." (Whaley, nd, p. 45) The check was endorsed by Guarino and Any Kind cashed the check. Endorsement is defined in §3-204(a). The funds were made immediately available to Guarino minus the fee charged. A customer's right to stop payment is defined in §4-403 and the check, upon Talcott stopping the payment, was then returned to Any Kind. At the time that the check was negotiated with Any Kind, the company become the check's holder and thereby was "a person entitled to enforce the instrument." (§1-201(20), 3-301 cited in Whaley, nd, p. 48) Whaley (nd) states that the obligation of Talcott "was the pay the draft to a person entitled to enforce the draft" and to do so "according to the terms at the time it was issued…" (§3-414(b) cited in Whaley, nd, p. 48) The question addressed in this study is if the trial court erred in its finding that the company, Any Kind was in fact not a holder in due course of the $10,000.00 check upon the basis of the findings of fact established at the time of the trial in this case. It is important to give consideration to the fact that the company, Any Kind "bore the burden of proof." (Whaley, nd, p. 48) According to Whaley (nd) that question "turns on whether Any Kind acted in good faith within the meaning of §3-302(a). The good faith requirement of the holder in due course doctrine "has been the source of an ancient and continuing dispute." White & Summers, Uniform Commercial Code §17-6 (4th ed. 1995)" cited in Whaley (nd, p. 48). One consideration is whether the courts should apply a test that is objective and which questions "whether a reasonably prudent person, behaving the way the alleged holder in due course behaved, would have been acting in good faith? Or would the courts instead apply a subjective test and examine the person's actual behavior…" (Whaley, nd, p. 49)

Summary and Conclusion

It is the opinion on this writer following research and study of both statute and case law that the company, Any Kind, and its employees, should have verified that the check in the large amount of $10,000.00 was a valid and negotiable instrument through contacting the issuer of the check. This amount is large enough to warrant verification procedures and failure to perform such procedures either from the objective or subjective view of what a reasonably prudent person representing its company would have or should have done would certainly appear to warrant a verification of the instrument before issuing funds in the amount of $10,000.00 by charging only a minimal fee of $500.00. It is the opinion of this writer that the trial court's findings in this case are the correct findings according to statute and case law.

Bibliography

Negotiable Instruments (nd) Chapter 30. Customer's Source

Holders in Due Course (Chapter 3) (nd) Whaley. Published by Jay Law. Retrieved from: http://jay.law.ou.edu/faculty/McCall/Payment%20Systems/Whaley%20chap%203%20HIDC.pdf

Uniform Commercial Code §17-6 (4th ed. 1995) cited in Whaley. Published by Jay Law. Retrieved from: http://jay.law.ou.edu/faculty/McCall/Payment%20Systems/Whaley%20chap%203%20HIDC.pdf READ MORE

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