Drafting protests of bills of exchange and checks
Drafting protests of bills of exchange
Bill of exchange is a type of security which can be nominal or endorsable, where the drawer makes an obligation that the other person (drawee) shall pay to the receiver for bill of exchange (payee) a specified sum of money (drafts) or obliges himself to pay a given sum to the receiver of the bill of exchange (loan note). Regulations which govern this institution are contained in the act as of 28 April 1936, the Bill of Exchange Law.
Protesting a bill of exchange is a public act, which is drafted by a notary according to art. 85 of the Bill of Exchange Law. Reasons for protesting a bill of exchange may include non-receipt of the bill of exchange, or refusal to pay it. The protest contains:
- a surname of a person who protests, and of a person against whom the protest shall be effected.
- a statement that the person against whom the protest is to be made did not obey the notice levelled to this person, and a statement given by this person, or a statement that this person was not present at home, or that the premises of this person’s enterprise or place of residence could not be found;
- designation of place and date when the notice was made, or was attempted to be made without results;
- designation of how many and what sort of bills of exchange were presented;
- signature of the body drafting a protest, official stamp and protest number.
A protest is drafted on the opposite side of a bill of exchange, or on a separate sheet attached to the bill of exchange. If there are no statements on the opposite side, writing of a protest shall begin from the edge, otherwise it shall start right after the last statement. If a protest is to be written in full, or partially on the separate additional sheet, the sheet shall be attached to the bill of exchange in such a way that there is no place left on the opposite side of the bill of exchange; the attachment of the bill of exchange to the additional sheet shall be stamped over with an official stamp, or written over the content of the protest act.
A notary enters the protest in the P repertory, kept only for protests.
If a debtor against whom the protest is aimed expresses his of her will to pay, the notary is obliged to receive payment and give a receipt. Bill of exchange protests are nowadays drafted very rarely due to the fact that most bills of exchange do not have endorsements (and only in such cases, given that the payment has not been made, there is a need to protest), moreover, most bills of exchange are drawn with a clause “without protest”.
The owner of the protested bill of exchange pays directly for performing this action by the notary, and the payment for that can be recovered from the debtor. Currently, maximum cost of protesting a bill of exchange is 5zł + 0,5% per every 1000 zł of the bill of exchange sum, maximum of 2500 zł. Travel costs of leaving the notary office shall be added – 50 zł per each hour.
Drafting protests of cheques
A cheque is a security, a kind of monetary order. A cheque is a strictly formalised document, which creates cash liability between the drawer and other people signed on it of an abstract sort and, what follows, is detached from its legal basis. Regulations which govern this institution are contained in the act as of 28 April 1936, Cheque Law. Cheques have a payment function and are always payable upon presenting, within 10 days since the moment they were drawn. We differentiate bearer cheques, nominal cheques with an “endorsable” clause or without; nominal cheques with a “non-endorsable” clause. Bearer cheques are transferred by handing them in, endorsable – via endorsements, nominal – via assignment. According to the Cheque Law (art. 29), a cheque, being a document shall contain the “cheque” name, an order of unconditional payment of the specified sum of money, a designation of the drawee (bank), the drawer’s signature, a designated place of payment, a designated date and place of its drawing.
Protesting a cheque is a public act, drafted by a notary in a form of applicable annotation on the opposite side of the cheque or on a separate sheet attached to the cheque. The attachment of the bill of exchange to the additional sheet shall be stamped over with an official stamp, or written over the content of the protest. The cheque can be protested before its expiry date or, at the latest, on a first working day after the cheque expired. The notary enters the protest in the P repertory, kept only for protests. If a debtor against whom the protest is aimed expresses his of her will to pay, the notary is obliged to receive the payment and give a receipt. Cheque protests are nowadays drafted very rarely.
Notarial cheque protest can be substituted by a written statement of the payee (bank) placed on the cheque which states refusal to execute the cheque with a date and the bank signature. On this basis the cheque’s owner can claim his liabilities.