(Legal status of copy)
1. A copy must identify the person in possession of the original instrument.
The latter is obliged to hand over such instrument to the lawful holder of the
copy.
2. If he refuses to do so, the holder can only exercise his right of recourse
against persons who have endorsed the copy or guaranteed it by 'aval' after he
has had a protest drawn up specifying that the original has not been returned to
him on his demand.
3. If the original instrument, after the last endorsement before the making
of the copy contains a clause 'starting from here an endorsement is only valid
if made on the copy' or some equivalent formula, a subsequent endorsement on the
original shall be void.
AMENDMENTS
(Consequences of amendment of text of a bill of exchange)
In case of amendment of the text of a bill of exchange, parties who have
signed subsequent to such amendment shall be bound according to the terms of the
amended text; parties who have signed before the amendment are bound according
to the terms of the original text.
LIMITATION OF ACTIONS
(Time limits)
1. All actions arising from a bill of exchange against the acceptor are
barred after three years from their date of maturity.
2. Actions by the holder against endorsers and against the drawer are barred
after one year from the date of a protest drawn up within the proper time, or
from the date of maturity, if there is a stipulation 'no expenses'.
3. Actions by endorsers against each other and against the drawer are barred
after six months, counted from the day on which the endorser paid the bill, or
from the day on which legal proceedings against him were initiated.
(Effect of interruption of period of limitation)
Interruption of the period of limitation only produces effect against the
person for whom the period has been interrupted.
GENERAL PROVISIONS
(Extension of time limits ending on a holiday)
1. Payment of a bill of exchange which falls due on a legal holiday can only
be demanded on the next business day. In the same manner, all other acts
relating to a bill of exchange, especially presentation for acceptance and
protest, can only take place on a business day.
2. When any of such acts must be taken within a certain time limit, the last
day of which is a legal holiday, the time limit is extended until the first
business day following its expiry.
(Counting of time limit)
Legal or contractual time limits do not include the day on which the period
begins.
(Inadmissibility of days of grace)
No days of grace, whether legal or judicial, shall be permitted.
PROMISSORY NOTES
(Requirements of promissory note)
A promissory note contains:
a) the term 'promissory note' inserted in the text of the instrument and
expressed in the language employed in drawing up the instrument;
b) an unconditional promise to pay an exact sum of money;
c) an indication of the time of payment;
d) an indication of the place where payment is to be made;
e) the name of the person to whom or to whose order payment is to be made;
f) an indication of the date and of the place where the promissory note is
issued;
g) the signature of the person issuing the instrument (maker).
(Lack of any requirement)
1. An instrument in which any of the requirements mentioned in the preceding
article is lacking does not produce effect as a promissory note, except in the
cases specified in the following paragraphs.
2. A promissory note in which the time of payment is not specified shall be
deemed to be payable on sight.
3. In the absence of a special indication, the place where the instrument was
made shall be deemed to be the place of payment and, at the same time, the place
of domicile of the maker of the promissory note.
4. A promissory note which does not mention the place of its issue is deemed
to have been made in the place mentioned beside the name of the maker.
(Application of provisions relating to bills of exchange)
1. The following provisions relating to bills of exchange apply to promissory
notes, so far as they are not inconsistent with the nature of this instrument:
a) endorsement (articles 1144 to 1153);
b) maturity (articles 1166 to 1170);
c) payment (articles 1171 to 1175);
d) right of recourse in case of non-payment (articles 1176 to 1183, and 1185
to 1187);
e) payment by intervention (articles 1188, and 1192 to 1196);
f) copies (articles 1200 and 1201);
g) amendments (article 1202);
h) limitation of actions (articles 1203 and 1204);
i) holidays, counting of time limits and prohibition of days of grace
(articles 1205 to 1207).
2. The following provisions are also applicable to a promissory note: the
provisions concerning a bill of exchange payable at the domicile of a third
party or in a locality other than that of the domicile of the drawee (articles
1137 and 1160), stipulation of interest (article 1138), discrepancies regarding
the sum payable (article 1139), the consequences of signature under the
conditions mentioned in article 1140, the consequences of signature by a person
acting without powers or who exceeds his powers (article 1141), and provisions
concerning blank bills of exchange (article 1143).
3. The following provisions are also applicable to promissory notes:
provisions relating to guarantee by 'aval' (articles 1163 to 1165); in the case
provided for in paragraph 4 of article 1164, if the 'aval' does not specify on
whose behalf it has been given, it shall be deemed to have been given on behalf
of the maker of the promissory note.
(Liability of maker. Promissory notes payable at a certain period after sight)
1. The maker of a promissory note is obliged in the same manner as an
acceptor of a bill of exchange.
2. Promissory notes payable at a certain period after sight must be presented
for the visa of the maker within the time limits fixed by article 1156. The time
limit runs from the date of the maker's visa. Refusal by the maker to give his
visa shall be certified by protest (article 1158), which marks the beginning of
the period of time after sight.
CHEQUE
DRAWING AND FORM OF A CHEQUE
(Requirements of cheque)
A cheque contains:
a) the term 'cheque' inserted in the text of the instrument and expressed in
the language employed in drawing up the instrument;
b) an unconditional order to pay an exact sum of money;
c) the name of the person who is to pay (drawee);
d) an indication of the place where payment is to be made;
e) an indication of the date when and the place where the cheque is drawn;
f) the signature of the person who draws the cheque (drawer).
(Lack of any requirement)
1. An instrument in which any of the requirements mentioned in the preceding
article is lacking does not produce effect as a cheque, except in the cases
specified in the following paragraphs.
2. In the absence of special indication, the place specified beside the name
of the drawee shall be deemed to be the place of payment. If several places are
named beside the name of the drawee, the cheque is payable at the first place
named.
3. In the absence of such indications, or of any other indication, the cheque
is payable at the place where the drawee has his principal establishment.
4. A cheque which does not specify the place at which it was drawn shall be
deemed to have been drawn in the place specified beside the name of the drawer.
(Funds available)
A cheque must be drawn on a banker holding funds at the disposal of the
drawer and in conformity with an agreement, express or implied, according to
which the drawer is entitled to dispose of such funds by means of a cheque.
However, if these provisions are not complied with, the instrument is still
valid as a cheque.
(Prohibition of acceptance)
A cheque cannot be accepted. A statement of acceptance on a cheque shall be
considered not written.
(Types as to payee)
1. A cheque can be made payable:
a) to a specified person, with or without the express clause 'to order';
b) to a specified person, with the clause 'not to order' or other equivalent;
c) to bearer.
2. A cheque made payable to a specified person with the words 'or to bearer',
or other equivalent, is deemed to be a cheque to bearer.
3. A cheque which does not specify the payee is deemed to be a cheque to
bearer.
(Types of draw)
1. A cheque can be drawn:
a) to the drawer's own order;
b) for account of a third party.
2. A cheque cannot be drawn on the drawer himself, unless it is drawn by one
establishment on another establishment belonging to the same drawer.
(Voidness of stipulation of interest)
Any stipulation on interest which may be embodied in the cheque shall be
considered not written.
(Cheque payable at domicile of a third party)
A cheque can be payable at the domicile of a third party either in the
locality where the drawee has his domicile, or in another locality, under the
condition that such third party is a banker.
(Discrepancy of amount payable)
1. If the sum payable by a cheque is expressed in words and in figures, in
case of discrepancy the sum denoted by the words shall be the amount payable.
2. If the sum payable by a cheque is expressed more than once in words, or
more than once in figures, in case of discrepancy the smaller sum shall be the
amount payable.
(Independence of valid signatures)
If a cheque bears signatures of persons incapable of binding themselves by a
cheque, or forged signatures, or signatures of fictitious persons, or signatures
which for any other reason cannot bind the persons who signed the cheque or on
whose behalf it was signed, the obligations of the other persons who have signed
it are nonetheless valid.
(Representation without powers or with abuse of power)
Anyone who puts his signature on a cheque as representative of a person who
he had no power to act on behalf of, is himself bound as a party to the cheque
and, if he pays it, has the same rights as the person for whom he purported to
act. The same rule applies to a representative who has exceeded his powers.
(Responsibility of drawer)
A drawer guarantees payment. Any stipulation by which a drawer releases
himself from this guarantee shall be considered not written.
(Breach of agreement to complete cheque)
If a cheque which was incomplete when issued has been completed in breach of
the agreements entered into, the breach of such agreements cannot be invoked
against the holder, unless he has acquired the cheque in bad faith or, in
acquiring it, has acted with gross negligence.
TRANSFER
(Forms of transfer)
1. A cheque made payable to a specified person, with or without the express
clause 'to order', can be transferred by means of endorsement.
2. A cheque made payable to a specified person, with the clause 'not to
order' or equivalent, can only be transferred according to the form and with the
effects of an ordinary assignment of credits.
3. Endorsement can be made even in favor of the drawer, or to any other party
to the cheque. Such persons can re-endorse the cheque.
(Types of endorsement)
1. An endorsement shall be unconditional. Any condition to which it is made
subject shall be considered not written.
2. A partial endorsement shall be void.
3. An endorsement by the drawee shall also be void.
4. An endorsement 'to bearer' is equivalent to a blank endorsement.
5. An endorsement to a drawee has only the effect of a receipt, except in the
case in which the drawee has several establishments and the endorsement is made
in favor of an establishment other than that on which the cheque has been drawn.
(Form of endorsement)
1. An endorsement must be written on the cheque or on a slip attached to it
(attachment). It must be signed by the endorser.
2. An endorsement can leave the beneficiary unspecified, or can consist
merely of the signature of the endorser (blank endorsement). In the latter case
the endorsement, to be valid, must be written on the back of the cheque or on
the attached slip.
(Effects of endorsement. Blank endorsement)
1. An endorsement transfers all the rights arising from a cheque.
2. If the endorsement is in blank, the holder can:
a) fill in the blank, either with his own name or with the name of another
person;
b) re-endorse the cheque in blank or to another person;
c) transfer the cheque to a third party without filling in the blank and
without endorsing it.
(Liability of endorser)
1. Unless there is a stipulation to the contrary, an endorser guarantees
payment.
2. An endorser can prohibit any further endorsement; in this case he does not
guarantee payment to the persons to whom the cheque is subsequently endorsed.
(Requirements of legitimacy of bearer)
The detainer of an endorsable cheque shall be deemed to be the legitimate
holder if he establishes his title to the cheque through an uninterrupted series
of endorsements, even if the last endorsement is blank. For this purpose,
crossed endorsements shall be considered not written. If a blank endorsement is followed by another endorsement, the person who signed such last endorsement
is deemed to have acquired the cheque by the blank endorsement.
(Endorsement to bearer)
An endorsement on a cheque to bearer renders the endorser liable in
accordance with the provisions regulating the right of recourse, but it does not
convert the instrument into a cheque to order.
(Dispossession not invokable against legitimate bearer)
If a person has been in any manner dispossessed of a cheque - whether it is a
cheque to bearer or an endorsable cheque to which the holder establishes his
right in the manner mentioned in article 1230 -, the holder into whose
possession the cheque has come is not obliged to return it, unless he acquired
it in bad faith, or in acquiring it he acted with gross negligence.
(Defenses not invokable against holder)
Persons against whom legal proceeding have been initiated on the basis of a
cheque cannot invoke against the holder defenses founded on their personal
relations with the drawer or with previous holders, except if the holder, in
acquiring the cheque, has knowingly acted to the detriment of the debtor.
(Endorsement in procuration)
1. If an endorsement contains the indication 'value in collection', 'for
collection', 'by procuration', or any other phrase implying a mere mandate, the
holder can exercise all rights arising from the cheque, but he can endorse it
only in his capacity of procurator.
2. In this case the liable parties can only invoke against the holder the
defenses which could be invoked against the endorser.
3. The mandate contained in an endorsement by procuration is not extinguished
by reason of the death of the party giving the mandate, or by reason of his
supervening lack of capacity.
(Late endorsement)
1. An endorsement after protest, or after an equivalent declaration, or after
the expiry of the time limit for presentation, operates only as an ordinary
assignment of credits.
2. Except if there is proof to the contrary, an undated endorsement is deemed
to have been made prior to the protest, or equivalent declaration, or prior to
the expiry of the time limit mentioned in the previous paragraph.
'AVAL'
(Function of 'aval')
1. Payment of the amount of a cheque can be wholly or partly guaranteed by an
'aval'.
2. This guarantee can be given by a third party other than the drawee, or
even by a person who has signed the cheque.
(Form of 'aval')
1. An 'aval' is given either on the cheque itself or in an attached slip.
2. An 'aval' is expressed by the words 'good as aval', or by any other
equivalent formula. It shall be signed by the giver of the 'aval'.
3. An 'aval' is deemed to be constituted by the mere signature of the giver
of the 'aval', on the face of the cheque, except in the case of the signature of
the drawer.
4. An 'aval' must specify to whom it is given. In the lack of this
indication, it is deemed to be given to the drawer.
(Liability of giver of 'aval')
1. A giver of 'aval' is obliged in the same manner as the person who he
guarantees.
2. His liability remains valid even if the obligation which he has guaranteed
is void for any reason other than defect of form.
3. By paying the cheque, the giver of 'aval' acquires the rights arising from
it against the person guaranteed and against those who are liable to the latter
on the basis of the cheque.
PRESENTATION AND PAYMENT
(Payment on sight)
1. A cheque is payable on sight. Any contrary stipulation shall be considered
not written.
2. A cheque presented for payment before the day stated as the date of issue
is payable on the day of presentation.
(Time limit for presentation for payment)
1. A cheque issued and payable in Macao must be presented for payment within
eight days.
2. A cheque issued abroad and payable in Macao must be presented within a
period of 20 or of 70 days, according to whether the place of issue and the
place of payment are situated in this or in other parts of the world.
3. The time limits mentioned above shall run from the date indicated on the
cheque as the date of issue.
(Date of issue in case of discrepancy of calendars)
If a cheque is drawn in one place and is payable in another that has a
different calendar, the day of issue shall be the corresponding day of the
calendar in the place of payment.
(Presentation to clearing house)
Presentation of a cheque at a clearing house is equivalent to presentation
for payment.
(Revocation of cheque)
1. The revocation of a cheque only takes effect after the expiry of the time
limit for presentation.
2. If a cheque has not been revoked, the drawee can pay it even after the
expiry of the time limit.
(Death or incapacity of drawer)
Death of the drawer or his lack of capacity subsequent to the issue of a cheque do
not invalidate its effects.
(Right to return in case of payment)
1. A drawee who pays a cheque can require that it shall be handed to him with
a receipt from the holder.
2. The holder cannot refuse partial payment.
3. In case of partial payment the drawee can require that the partial payment
shall be mentioned on the cheque and that a receipt shall be given to him.
(Obligation to verify regularity of series of endorsements)
A drawee who pays an endorsable cheque is obliged to verify the regularity of
the series of endorsements, but not the signature of the endorsers.
(Currency in which payment should be made)
1. If a cheque is payable in a currency which is not legal tender in the
place of payment, the sum payable can, within the time limit for presentation of
the cheque, be paid in the currency of the country in which it is presented,
according to its value at the date of payment. If payment is not made on
presentation, the holder can, by his choice, demand that payment of the amount
of the cheque in the currency of the country in which it is presented be made
according to the rate on the day of presentation or on the day of payment.
2. The usage of the place of payment shall be applied in determining the
value of foreign currency. However, the drawer can stipulate that the sum
payable shall be calculated according to a rate indicated in the cheque.
3. The previous rules do not apply to the case in which the drawer has
stipulated that payment must be made in a certain specified currency (clause for
effective payment in a foreign currency).
4. If the amount of the cheque is specified in a currency having the same
denomination, but a different value in the country of issue and the country of
payment, reference is deemed to be made to the currency of the place of payment.
CROSSED CHEQUES AND CHEQUES PAYABLE IN ACCOUNT
(Crossed cheque. Types of crossing)
1. The drawer or holder of a cheque can cross it, with the effects stated in
the following article.
2. A crossing takes the form of two parallel lines drawn on the face of the
cheque; crossing can be general or special.
3. Crossing is general if it consists of the two lines only, or if between
the lines the term 'banker' or other equivalent is written; it is special if the
name of a banker is written between the lines.
4. A general crossing can be converted into a special crossing, but a special
crossing cannot be converted into a general crossing.
5. The cancellation of a crossing or of the name of the banker shall be
regarded as not done.
(Payment of crossed cheque)
1. A cheque with a general crossing can be paid by the drawee only to a
banker or to a client of the drawee.
2. A cheque with a special crossing can be paid by the drawee only to the
named banker, or if the latter is the drawee, to his client. However, the named
banker can use another banker to collect the cheque.
3. A banker can only acquire a crossed cheque from one of his clients or from
another banker. He cannot collect it for the account of persons other than the
above mentioned.
4. A cheque with various special crossings cannot be paid by the drawee
except in case there are two crossings, one of which is for collection through a
clearing-house.
5. A drawee or banker who fails to observe the above provisions is liable for
the resulting damage up to the amount of the cheque.
(Cheque payable in account)
1. The drawer or the holder of a cheque can prohibit its payment in cash by
writing transversally across the face of the cheque the words 'payable in
account' or an equivalent expression.
2. In such case the cheque can only be settled by the drawee by means of
book-entry (credit in account, transfer from one account to another, or
compensation). Payment by book-entry is equivalent to payment.
3. Any cancellation of the words 'payable in account' shall be deemed not
done.
4. A drawee who does not observe the above provisions is liable for the
resulting damage up to the amount of the cheque.
ACTION FOR NON-PAYMENT
(Refusal of payment. Recourse for non-payment)
A holder can exercise his right of recourse against endorsers, the drawer,
and other liable parties if the cheque presented in due time is not paid, and if
the refusal to pay is evidenced:
a) by a formal act (protest); or
b) by a declaration dated and written by the drawee on the cheque, indicating
the day of presentation; or
c) by a dated declaration made by a clearing-house, stating that the cheque
has been delivered in due time and has not been paid.
(Protest for non-payment)
1. A protest or an equivalent declaration must be made before the expiry of
the time limit for presentation.
2. If a cheque is presented on the last day of the time limit, the protest or
the equivalent declaration can be drawn up on the first following business day.
(Notice of non-payment)
1. A holder must give notice of non-payment to his endorser and to the drawer
within the four business days following the day on which the protest or the
equivalent declaration is drawn up or, in case of a stipulation 'no expenses',
the day of presentation. Each endorser must, within the two business days
following the day on which he receives notice, inform his endorser of the notice
which he has received, mentioning the names and addresses of those who have
given the previous notices, and so on through the series until the drawer is
reached. The time limits mentioned above run from the receipt of the preceding
notice.
2. If, in conformity with the previous paragraph, notice is given to a person
who has signed a cheque, the same notice must be given within the same time
limit to his giver of 'aval'.
3. If an endorser has not indicated his address, or has specified it in an
illegible manner, it is sufficient if notice is given to the endorser preceding
him.
4. The person who must give notice can give it in any form, even by merely
returning the cheque.
5. Such person must prove that he has given notice within the time limit
prescribed. This time limit shall be regarded as having been observed if a
letter giving the notice has been posted within it.
6. A person who does not give notice within the time limit prescribed above
does not forfeit his rights. He shall be liable for damage, if any, caused by
his negligence, but the amount of his liability shall not exceed the amount of
the cheque.
(Clause dispensing protest)
1. The drawer, an endorser, or a giver of 'aval' can, by the clause 'no
expenses', 'no protest', or any other equivalent clause, release the holder from
having a protest or an equivalent declaration drawn up in order to exercise his
right of recourse.
2. Such clause does not release the holder from presenting the cheque within
the prescribed time limit, or from giving the requisite notices. The burden of
proving non-observance of the time limit falls on the person who seeks to invoke
it against the holder.
3. If the clause is written by the drawer, it shall produce effect in respect
of all persons who have signed the cheque; if it is written by an endorser or a
giver of 'aval', it shall produce effect only in respect of such endorser or
giver of 'aval'. If, in spite of the clause written by the drawer, the holder
has the protest or the equivalent declaration drawn up, he must bear its
expenses. If the clause emanates from an endorser or giver of 'aval', the costs
of the protest or equivalent declaration, if drawn up, can be recovered from all
persons who have signed the cheque.
(Joint and several liability of signatories)
1. All persons liable on a cheque are jointly and severally liable towards
the holder.
2. The holder has a right to proceed against all such persons, individually
or collectively, without the need to observe the order in which they have become
bound.
3. The same right is held by any person signing the cheque who has paid it.
4. Proceedings against one of the parties liable do not prevent proceedings
against the others, even though such other parties may be subsequent to the
party first proceeded against.
(Rights of holder against a person proceeded against)
A holder can claim from the party against whom he exercises his right of
recourse:
a) the unpaid amount of the cheque;
b) interest on such amount, at a rate of 6%, from the date of presentation;
c) the expenses of the protest or equivalent declaration, and of notices
given, as well as other expenses.
[Portuguese version as amended by Law no.
6/2000, of April 27]
(Rights of person who paid)
A party who has paid a cheque can recover from the parties liable towards
him:
a) the entire sum he has paid;
b) interest at a rate of 6%, from the day on which he paid;
c) any expenses which he has incurred.
[Portuguese version as amended by Law no.
6/2000, of April 27]
(Right to delivery of paid cheque)
1. Any liable party against whom a right of recourse is or can be exercised
can require, against its payment, that the cheque shall be handed to him, with
the protest or equivalent declaration and a receipt.
2. Any endorser who has paid a cheque can cancel his own endorsement and
those of subsequent endorsers.
(Extension of time limits in case of force majeure)
1. If the presentation of a cheque or the drawing up of a protest or the
making of the equivalent declaration within the prescribed time limit is
prevented by an insurmountable cause (legal provisions by any State or other
case of force majeure), such time limits shall be extended.
2. The holder shall immediately give notice of the force majeure to his
endorser, and make a dated and signed declaration of this notice, on the cheque
or on an attached slip; in other respects the provisions of article 1253 shall
apply.
3. Provided that the case of force majeure has ceased, the holder must
without delay present the cheque for payment and, if there is cause for such,
draw up a protest or an equivalent declaration.
4. If the case of force majeure continues after 15 days after the date on
which the holder, even before the expiry of the time limit for presentation, has
given notice of the case of force majeure to his endorser, recourse can be
exercised and neither presentation, nor a protest, nor an equivalent declaration
is needed.
5. Facts which are purely personal to the holder or to the person whom he has
entrusted with the presentation of the cheque or the drawing up of the protest
or of the equivalent declaration are not deemed to constitute force majeure.
PARTS OF A SET
(Admissibility of various parts)
1. With the exception of bearer cheques, any cheque issued in one country and
payable in another can be drawn in a set of identical parts.
2. If a cheque is issued as a set of parts, each part must be numbered in the
body of the instrument itself; in lack of such, each part shall be deemed to be
a separate cheque.
(Effect of payment of one part)
1. Payment made on one part operates as a discharge, even if there is no
stipulation that such payment shall annul the effect of the other parts.
2. An endorser who has transferred parts to various persons, and also the
endorsers subsequent to him, shall be liable for all the parts bearing their
signature which have not been returned.
AMENDMENTS
(Consequences of amendment of text)
In case of amendment of the text of a cheque, parties who have signed
subsequent to such amendment shall be bound according to the terms of the
amended text; parties who have signed before the amendment are bound according
to the terms of the original text.
LIMITATION OF ACTIONS
(Time limits)
1. All actions by the holder against the endorsers, the drawer and the other
liable parties are barred after six months, counted from the expiry of the time
limit set for presentation.
2. Actions by a party liable for the payment of a cheque against other such
parties are barred after six months, counted from the day on which the party
liable has paid the cheque, or the day on which legal proceedings against him
were initiated.
(Effect of interruption of period of limitation)
Interruption of the period of limitation only produces effect against the
person for whom the period has been interrupted.
GENERAL PROVISIONS
(Meaning of word banker)
In this law the word 'banker' includes persons or institutions assimilated by
the law to bankers.
(Extension of time limits ending on a legal holiday)
1. Presentation for payment and protest can only be done on a business day.
2. If the last day of the time limit prescribed by the law for performing
acts relating to a cheque, and especially for presentation, or for the drawing
up of a protest or an equivalent declaration, is a legal holiday, the time limit
is extended until the first business day following the expiry of such time
limit. Intermediate holidays shall be included in counting time limits.
(Counting of time limit)
The time limits foreseen in this Chapter shall not include the day on which
the period begins.
(Inadmissibility of days of grace)
No days of grace, whether legal or judicial, shall be permitted.
|
