4.5. Offer and acceptance According to Art. 435 of the Civil Code of the Russian Federation, an offer is recognized as an offer addressed to one or several specific persons, which is quite definite and expresses the intention of the person who made the offer to consider himself to have entered into an agreement with the addressee, who will

Acceptance of a bill of exchange ( drafts) - consent to pay the bill in favor of the holder of the bill, who presented it for payment. The person making the acceptance is called acceptor.

Acceptance is marked on the left side on the front side of the bill and is expressed by the words "Accepted", "I will pay" or other words equivalent in meaning, with the obligatory affixing of the signature, stamp of the payer and the date of acceptance. The holder of the bill has the right to present the bill for acceptance to the payer at the place of residence of the latter at any time, starting from the date of issue of the bill and ending with the date of payment. A bill of exchange may be presented for acceptance and accepted even after the due date, and the acceptor will be liable for the bill in the same way as if he had made an acceptance before the due date.

An acceptance should be regarded as a comparison of the true debt of the drawee to the drawer to the obligation that the bill of exchange imposes on him.

The acceptance must be simple and unconditional, but the payer may limit it to a part of the amount. All changes made by the acceptor in the content of a bill of exchange are tantamount to a refusal to accept. However, the acceptor is liable according to the content of his acceptance.

The acceptor of a bill of exchange is bound in the same way as the drawer of a promissory note. The payer by acceptance undertakes an unconditional obligation to pay the bill of exchange on the date specified in the bill. In the event of non-payment, the holder of a bill of exchange has a direct claim against the acceptor based on a claim under the bill. In case of non-acceptance of the bill of exchange on the day of presentation of the bill by the holder of the bill, the drawee may demand a second presentation of the bill, but only on the next day after the first presentation.

The remitter is not obliged to hand over to the drawee the bill presented for acceptance. If the drawee signed his acceptance on a bill of exchange and struck it out before the bill was returned, then the strikethrough will be deemed to have been made before the document was returned to the holder, and it will mean the rejection of the acceptance. However, if the drawee has communicated his acceptance in writing to the holder of the bill or to any of the signatories of the bill, he is liable to them in accordance with the terms of his acceptance.

Usually, bills with a maturity date of "at sight" are not accepted; with such bills, acceptance and payment may coincide in time.

Aval

Aval- a bill of exchange guarantee, the essence of which is that a person assumes responsibility for paying the bill of one or more persons responsible for the bill.

Aval cannot be given for a person who is not responsible for a bill (for example, for a drawee who did not accept a bill).

Aval is made on the front side of the bill or on allonge(additional sheet to the bill) and is usually expressed by the words "count as aval" or other equivalent words.

The person who issues the aval is called avalist.

The avalist can limit the guarantee to only a part of the amount or a certain period. Aval can be issued for any person responsible for the bill, so the avalist must indicate for whom he gives guarantee. Otherwise, if the person for whom the aval is issued is not indicated, it will be recognized that the aval has been issued for the drawer. A simple signature on the front side of the bill is also considered aval, unless it is affixed by the payer or drawer. In this case, it will be considered that the aval is given for the drawer.

Any person can act as an avalist. The avalist and the person for whom he is responsible are jointly and severally liable for the payment of the bill. In the event that the person for whom the guarantee was given is unable to pay the bill, the obligation to pay the bill lies with the avalist. After payment of the bill, the avalist acquires the right to demand payment of the bill of exchange to the person for whom he gave the guarantee, as well as to all persons liable to these persons, that is, to all previous endorsers, if any, the drawer and the acceptor. Proceeding from the position of bill of exchange law, it should be emphasized that the aval, like the bill itself, is an abstract obligation.

Most often in practice, banks that give guarantees for persons financial position which are under their control.

It is easy to see the relationship between the level of creditworthiness of an avalier and the liquidity of an avalized bill - the larger and more reliable the guarantor, the greater the liquidity of an avalized bill.

Endorsement

Endorsement is the endorsement on the reverse side of the bill. The endorsement fixes the transfer of the right of claim under the bill from one person to another. Typically, an endorsement is in the form "Pay to order..." or "Pay to...".

When endorsed, the full name of the person in whose favor the bill is transferred is indicated. Such a person is called endorsee, and the person transferring the bill - endorser.

The endorsement must be simple and unconditional.

It is not allowed to transfer part of the amount of the bill, that is, a partial endorsement.

The endorsement must be personally signed by the endorser, and if the endorser - entity, a seal is required next to the signature of the first person.

The endorsement must be dated.

The endorser is responsible for the acceptance and payment of a bill of exchange and payment of a promissory note. However, he can also relieve himself of responsibility for acceptance and payment if he makes the reservation "without turnover on me." In this case, he is excluded from the chain of persons liable under the bill. It is obvious that such a clause will significantly reduce the liquidity of the bill. The holder of a bill may exclude the possibility of further endorsement of the bill by including the words "not to order" in the text of the bill. In this case, the bill can only be transferred by means of an assignment.

Types of endorsements

1. Nominal endorsement contains the name of the endorser, signature and seal of the endorser. Such an endorsement fixes the transfer of ownership of the bill from one person to another.
2. Blank Endorsement differs from the nominal one in that it does not contain the name of the endorser, and in fact a bill with such an endorsement is bearer. The endorser has the opportunity to enter the name of the new holder himself or transfer the bill without making any more entries. A blank endorsement becomes nominal after the name of the holder of the bill is entered in the text of the endorsement, usually this is done when the due date is due.
3. Collection endorsement- this is an endorsement in favor of a bank, authorizing the latter to receive payment on a bill. Such an endorsement has the form “for collection” and gives the bank the right to present the bill for acceptance or payment, and in case of non-acceptance or non-payment - to protest. Usually, bank collection operations are drawn up in a separate agreement and paid by the client. Further endorsements may be on such a bill only of a permissive nature, that is, not giving ownership of the bill.
4. pledge endorsement is done in the case when the holder of the bill transfers the bill of exchange to the creditor as collateral for the issued loan. Typically, such a bill is accompanied by the clause "collateral currency" or another equivalent phrase. A pledge endorsement does not give ownership of the bill to the endorser. Moreover, all further endorsements, as in the case of collection, can only be of a permissive nature. An endorsement may be made at any time after the note has been drawn, even after the due date, and will have the same effect as if it had been made before the due date. However, an endorsement made after a protest of a bill cannot be considered an endorsement and has the force of an assignment. Accordingly, in such a case, the endorser cannot be held liable for the payment of the bill. The date of the endorsement is of great importance, since an undated endorsement is automatically considered to have been made before the protest, unless proven otherwise.

Table 1. Types of endorsements.

Accounting for bills

Accounting for bills represents the payment by the bank of a non-own bill of exchange before the maturity date.

This means that the holder of the bill transfers (sells) the bill to the bank by endorsement before the maturity date and receives the bill amount for this minus (for early receipt) a certain percentage of this amount, the so-called discount interest, or discount. Each bank, considering bills, sets the size of the discount rate selectively, depending on the bill holder who submitted the bill for accounting. The discount can theoretically be calculated using the following formula:

• D - discount
• N - face value of the bill
• t - the time remaining until the repayment of the bill
• r - bank rate
• T - annual period

The interest of banks in this operation is explained by the fact that they:

• expand the range of clients served
• have the opportunity to get additional income in the form of accounting interest (discount)

When discounting bills of exchange, banks must work out both the accounting procedure and determine the requirements for bill holders and discounted bills.

Bill payment

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

1. The bill of exchange is presented for payment at the location of the payer, unless otherwise specified in the bill.
2. The payer must make payment immediately upon presentation of the bill, if the presentation of the latter is timely. Deferral of payment on a bill of exchange is allowed only in case of occurrence of force majeure circumstances.
3. When calculating the maturity of a bill, the day on which it is issued should not be taken into account. If the maturity date falls on a non-working day, the bill must be repaid on the next business day.
4. Presenting a bill of exchange for payment before the maturity date does not oblige the debtor to pay on it, just as the debtor's demand for the bill holder to accept payment before the maturity date of the bill cannot be satisfied.
5. The debtor can pay only a part of the amount on the day of repayment of the bill, and the holder of the bill has no right not to accept the payment. In this case, a note is made on the front side of the bill of exchange about the repayment of a part of the bill amount. The holder of the bill has the right to protest the unpaid amount and bring a claim against any of all persons liable under the bill in the amount of the unpaid amount.

Deferral of payment on a bill of exchange is not possible, however, in practice there are circumstances when it is necessary to extend the payment period.

This can be done by inscribing on the front side of the promissory note the clause “the due date has been extended until ...” or another equivalent in meaning. At the same time, in order for the new inscription to be valid, the signatures of all persons liable under the bill are required. If any of these persons do not agree with the new payment term, this person ceases to be liable after the expiration of the old payment period.

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

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

• It is impossible to find the payer at the specified address
• payer's death
• insolvency of the payer
• the bill says "not accepted" or "not accepted"
• the record of acceptance will be crossed out

Domiciliation of bills

Domiciliation of bills- appointment of a third party as a payer.

Typically, this function is performed by the bank. He concludes with the debtor on the bill of exchange an agreement on the domiciliation of the bills of the latter, charging a commission for this service. The task of the bank includes: payment of bills of the client, compliance with the procedure for presenting bills for payment. The Bank makes a payment on the client's bills of exchange presented for payment only if the latter provides in advance a sufficient amount of money to pay off the bills. Otherwise, the bank refuses to bearers in payment. An external sign of a domiciled bill is the words in the text of the bill "payment in the bank ..." or other equivalent in meaning.

Protest bills

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

If a bill of this quality is lost, the right to claim a debt will already be of a conditional nature, that is, the bill will have the status of just an IOU.

For example, the company improperly protested the bill of non-payment, that is, violated one or more conditions of the protest. In this case, the company, of course, has the right to apply to the arbitration court with statement of claim against the debtor, however, the decision of the court will be made on the basis of the terms of the main transaction, and by no means the bill of exchange law.

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

Promissory note protest procedure

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

Consequences for properly making a protest:

• The judiciary has the power to issue judgments in claims based on contested promissory notes.
• Liability arises: for a promissory note - the writers, and in a transferable bill - the writers and the drawer. All these persons are jointly and severally liable to the holder of the bill. The latter has the right to bring a claim against all persons liable under the bill of exchange or against one of them, regardless of the order of signatures of these persons on the bills.
• The holder of a bill of exchange has the right to demand from persons liable under the bill a larger amount than indicated in the bill, in view of the costs incurred due to the protest and non-receipt of payment on it.

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

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

Since the responsibility of each of the participants in the bill of exchange has different levels, the statute of limitations for each of them is also different. Thus, for filing a claim by the bill holder against the acceptor of a bill of exchange, a three-year period is set, and for the drawer of a promissory note - one year from the date of the protest made within the prescribed period, or from the date of the due date, in the case of the clause "on turnover without costs". The latter also applies to endorsers. For the claims of endorsers against each other and against the drawer, it is established limitation of actions– 6 months from the date on which the endorser paid the bill, or from the date of filing a claim against him.

Acceptance of a bill- a procedure associated with the use of bills of exchange, in which the recipient of the bill (remitter) or any other person who has the bill of exchange offers the payer of the bill (draft) to assume the obligation to pay it. Since the payer of the bill of exchange is a third party, in order for him to pay, it is required to obtain his written consent. This consent is expressed in acceptance. Acceptance is also called the very inscription on the bill, which indicates that the drawee is ready to pay the bill.

The person who put the inscription about the acceptance is usually called the acceptor in the bill circulation.

A bill of exchange may be presented to the drawee for acceptance from the date of issue of the bill until its redemption. The law limits the maximum time for presentation for acceptance of a bill with a period of so much time from presentation to one year from the date of drawing up.

Before the payer has put his mark of acceptance, he is not obliged to pay the bill. In addition, he has the right to demand a re-presentation of the bill for acceptance on the next day. Such an opportunity is provided to him in order to determine the details of his relationship and mutual settlements with the drawer.

Acceptance is marked on the bill of exchange with the word "accepted" or any other equivalent word and the payer's signature. By law, any signature of the payer on the front side of the bill will be regarded as an acceptance. The acceptance must be simple and unconditional. At the same time, the payer can accept only a part of the amount indicated in the bill.

When accepting, the payer is obliged to put a date. This matters in the event that the bill is issued on the terms of repayment "at such and such a time from presentation." In case of refusal to set the date on this fact, a protest against the bill is carried out.

If the payer does not accept the bill, a protest against the bill is also applied, and in the future, the penalty is directed to the drawer and those who signed the endorsement or aval. Endorsement is an endorsement on security, bill of exchange, check, bill of lading, etc., certifying the transfer of rights under this document to another person. It is usually put down on the reverse side of the document or on an additional sheet.

The bill protest procedure has the following meaning. The fact is that when the bill is signed and issued, the fact of the debt is considered already established. And therefore it is considered that there is no need to prove it in court. The protested bill is submitted to the court, while hearings are not held, but enforcement proceedings are immediately initiated. That is, the case is referred to the bailiffs.

The acceptance of a bill is an expression by the payer in prescribed form consent to pay the bill of exchange. The payer, who thus expressed his consent to pay the bill, is called the acceptor.
Acceptance is provided only for bills of exchange. In promissory notes, it cannot take place, since there is no need to obtain the obligation of the payer: the position of the drawer of a promissory note combines the properties of both the payer and the drawer of the draft. Promissory notes are not subject to acceptance. In them, the drawer and the payer coincide in one person (Article 3 of the Regulations on a bill of exchange and a simple bill). Due to the fact that the drawer undertakes to pay himself, these bills are by their nature simple, so their acceptance is impossible.
The main legal significance of the acceptance is that only after the acceptance is made, the drawee becomes obligated under the bill of exchange (Article 28 of the Regulations). Therefore, acceptance solves both problems of a psychological and economic nature (increasing confidence in paying a bill, and therefore increasing its value and ability to circulate), as well as legal problems: since a bill is an abstract independent obligation, then until the obligation of the drawee is accepted to itself in the paper itself, it is absent, despite any prior non-exchange agreements. The grounds for acceptance are those circumstances by virtue of which the payer accepts (accepts) the bill. These circumstances lie outside the bill and cannot be reflected in the text of the document. Of these, two large groups stand out:
Acceptance occurs due to the fact that the payer must pay the drawer for the goods, services, etc. provided by the latter.
Acceptance is given by virtue of an acceptance credit agreement.
The acceptance of a bill of exchange must be given only in writing and executed on the bill itself. Outwardly, it must be the word "accepted" or an equivalent word and signed by the payer. In addition, the simple signature of the payer on the front side of the bill has the value of acceptance (Article 25 of the Regulations on a bill of exchange and a simple bill). General rule set out in Art. 21 of the Regulations, says that the bill of exchange is presented for acceptance before the due date. This is the latest moment. The earliest moment when acceptance is possible is determined by taking into account two circumstances:
The acceptance cannot be dated a day earlier than the day the bill was drawn up.
Acceptance is valid only on a bill of exchange duly drawn up. Bills of exchange with a term "in so much time from presentation" must be presented for acceptance within one year from the date of their compilation. Although Art. 23 of the Regulations prescribes to count this period from the day of their issuance, this should be done from the day they are drawn up, since the day of issue does not apply to the mandatory designations on the bill and its determination is very difficult.
With partial acceptance, the payer refuses to fully accept the bill, but agrees to pay only part of the bill amount. The circumstances that caused the partial acceptance lie outside the sphere of regulation of bill of exchange law. These circumstances must not be stated in the inscription of the payer, otherwise the holder will be entitled to consider that the acceptance has been refused in full, and not in part. Partial acceptance is certified by protest. The holder of a bill who has received a partial acceptance may:
Make a protest in partial non-acceptance and carry out early recovery unaccepted amount of the bill from persons liable on it.
Make a protest in partial non-acceptance and transfer the partially accepted bill with the act of protest to another bill holder.
Endorse the bill without making a protest. The consequences of non-presentation of a bill for acceptance, when such presentation is mandatory, are regulated by Art. 53 Regulations. If the obligatory presentation was established by the drawer, then the holder of the bill is not entitled to demand judicial satisfaction in case of non-payment, as well as to demand a protest. If the reservation is included by the endorser, then in case of non-payment, satisfaction cannot be demanded from him alone in the court. All other inscribers bear the responsibility established by Art. 48 Regulations. Rules Art. 53 are also applied in the absence of a deadline for mandatory presentation for acceptance.
The main consequence of the non-acceptance of the bill is the emergence of the holder of the right of recourse against other persons liable under the bill. According to Art. 43 of the Regulations, the right of recourse arises when there has been a total or partial refusal of acceptance. It may be expressed either in writing on the bill itself, or in other written or oral communication. The silence of the acceptor should also be considered a refusal of acceptance; the law of exchange does not allow a negative acceptance; we can only talk about the express consent of the drawee to pay the bill.

More on the topic Chapter 2. Acceptance of a bill:

1. Chapter 1. Cashless payments as one of the main operations carried out on a bank account
2. § 4. Method of security - Personal trust. - Written commitment. - Guarantee. - Acceptance. - Pledge. - Lombard and mortgage credit. - Order of the mortgage. - Seniority of mortgages.
3. § 5. Passive operations. - Own capital. - Deposits and current accounts. - Check system. - Clearing houses. - Re-registration and re-mortgage. - Correspondents. - Acceptances.

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