benjamin geva

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Banking Services Law - A Canadian Perspective on the Jack Report

The Financing Assignee and the Contract for Sale in the United States and Canada

Boston College Law Review, 1982

The author acknowledges with great gratitude the research assistance of Christopher Moes of the 1... more The author acknowledges with great gratitude the research assistance of Christopher Moes of the 1982 Osgoode Hall graduating class. I See text and notes at notes 40-45 infra. 2 Mangles v. Dixon, (1852) 3 H.L.C. 702, 735, 10 Eng. Rep. 278 (per Lord St. Leonards) (emphasis added). "The conventional metaphor is that the assignee stands in the assignor's shoes." 2 G. GILMORE, SEcURrrY INTERESTS IN PERSONAL PROPERTY 1089 (1965). 3 For a definition of "financing assignee", see text at note 20 infa. For "financing" and "sale" see text and notes at notes 6-9 infa. 1 The essence of a sales transaction is the passage of title to goods from a seller to a buyer for a price. U.C.C. 5 2-106(1); Ontario Sale of Goods Act, ONT. RaV. STAT. 1980 c.462; BALLENTINE'S LAW DICTIONARY, supra note 5, at 1133. 9 Cf. definition of "financing agency" in U.C.C. § 2-104(2): a bank, finance company or other person who in the ordinary course of business makes advances against goods or documents of title or who by arrangement with either the seller or the buyer intervenes in ordinary course to make or collect payment due or claimed under the contract for sale... due or claimed under the contract for sale .. Id. " 'Financing agency' is broadly defined ... to cover every normal instance in which a party aids or intervenes in the financing of a sales transaction." U.C.C. § 2-506 comment (1). Note, however, that in its first part the definition fails to mention that the financing agency must be a, third party to the sales transaction and that in its last part the definition seems to cover also debt collection unaccompanied by previous advances. The definition is thus overbroad. 10 U.C.C. § 3-104(1). See also Bills of Exchange Act, CAN. RE .. STAT. 1970, c.B-5 (as amended) ss. 17(1) (bill of exchange defined) and 176(1) (definition of a promissory note). The instrument could originally be payable to the buyer and then endorsed to the seller. 11 "A writing which complies with the requirements of this section is ... a 'draft' ('bill of exchange') if it is an order..." U.C.C. § 3-104(2). See also definition of "bill of exchange" in s. 17(1) of the Canadian Bills of Exchange Act, CAN. R v. STAT. 1970 c.B-5 (as amended). 12 " 'Bank' means any person engaged in the business of banking." U.C.C. S 1-201(4). It is narrower than "financing agency" under § 2-104(2). See note 9 supra. Under 5 2 of the Canadian Bills of Exchange Act, CAN. REv. STAT. 1970 c.B-5 (as amended), "bank" is "an incorporated bank or savings bank carrying on business in Canada." This is narrower than the Code definition. 13 Letters of credit are covered by Article 5 of the Uniform Commercial Code. For their use in sales financing, see Wiley, How to Use Letters of Credit in Financing the Sale of Goods, 20 Bus. LAW. 495 (1965). 14 "Receivables" are the obligations of customers towards retailers. See, Kripke, Con-May 1982] 48 Id. at 202. 49 Paragraph 14 of the contract, id. at 204, as construed by the court, id. at 208-09. 50 Id. at 206. 51 Id. at 202. 52 Id. 53 Id. at 212-13. May 1982] 104 The section further provides that "the assignee acquires corresponding rights under the modified or substituted contract." See generally G. GILMORE, supra note 2, at 1121-24. 1o5 Obviously, the assignor's own power to participate in the modification of the assigned contract could be in breach of his contract with the assignee. Cf. U.C.C. § 9-318(2).

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Financing consumer sales and product defences in Canada and the United States

https://digitalcommons.osgoode.yorku.ca/faculty_books/1019/thumbnail.jp

Consumer Protection in Electronic Funds Transfers

Negotiable Instruments and Banking: Review of Some Recent Canadian Case Law

FedWire Transfer of Funds

The author explores the legal framework applicable to FedWire, the most extensive domestic large ... more The author explores the legal framework applicable to FedWire, the most extensive domestic large dollar system in the United States. The author analyzes the rules governing funds transfer under Fed- Wire, how access to FedWire funds is achieved (transfer items and requests), the steps involved in making a FedWire funds transfer from a non-Reserve Bank transferor for a beneficiary; the time schedule for the execution of a funds transfer; revocation and errors; and settlement and daylight overdraft

Uniformity in Commercial Law: Is the UCC Exportable?

Loyola of Los Angeles law review, 1996

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Digital Euro, Monetary Objects and Price Stability—a Legal Analysis

Social Science Research Network, 2021

The Eurosystem is mandated to safeguard price stability according to article 127 of the Treaty on... more The Eurosystem is mandated to safeguard price stability according to article 127 of the Treaty on the Functioning of the European Union (TFEU). Based on a theoretical and policy-oriented approach, this article sheds light on a second public good with enormous practical relevance both for financial markets and institutions as well as for the general public that the Eurosystem, and ultimately the European Central Bank (ECB), must safeguard according to article 128 TFEU: the availability of ideal monetary objects for the public. While monetary policy constitutes the instrument used to keep prices stable, the availability of ideal monetary objects is ensured through the issuance of 'cash' that serves as both money with selected properties and an anchor for other monies of the same currency, including sight deposits at commercial banks. Today, the role of ideal monetary objects is (still) primarily fulfilled by tangible banknotes. As the use of tangible banknotes declines, however, a digital equivalent and complement-a digital euro-becomes increasingly necessary. Accordingly, the article concludes that the ECB is both entitled and obliged de lege lata to issue a digital euro on the basis of article 128 TFEU. It further explains that neither tangible cash nor a digital euro can simultaneously be used as instruments in themselves to maintain price stability.

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International Commercial Banking

Access to the Canadian Payment System

The Issuing Bank's Defences Against the Payee of a Bank Draft - Addendum to "The Autonomy of the Banker's Obligation on Bank Drafts and Certified Cheques

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Interbank Settlement in Wire Transfers – Legal Aspects

International Funds Transfer: Performance by Wire Payment

Commercial and Consumer Transactions: Cases, Text and Materials

Commercial and Consumer Sales Transactions provides a comprehensive overview of Canadian sales la... more Commercial and Consumer Sales Transactions provides a comprehensive overview of Canadian sales law with a focus on the parties’ substantive rights and obligations and how these rights are enforced (or not enforced) in practice, particularly in the consumer area. Topics covered include: Seller’s implied obligations with respect to description, quality, and delivery Transfer of title between owners and non-owners Manufacturer’s liability A range of buyer’s remedieshttps://digitalcommons.osgoode.yorku.ca/faculty_books/1275/thumbnail.jp

International Negotiable Instruments

The Australian Year Book of International Law Online

The book marries two fields of law: negotiable instruments and choice-oflaw. Bills of exchange, c... more The book marries two fields of law: negotiable instruments and choice-oflaw. Bills of exchange, cheques and promissory notes are the main classical negotiable instruments. For centuries, these instruments have played a vital role in the smooth operation of domestic and international commerce, including in transactions between distantly located parties. Through their evolution, fusion, and sophistication, they have remained one of the primary tools for everyday commercial activity, serving as one of the primary methods of payment and credit and one of the cornerstones of the contemporary bank-centred system. The rapid technological progress of payment mechanisms has embraced the traditional institution of negotiable instruments leading to their further adaptation and sophistication in order to meet the challenges of the contemporary reality of frequent mobility of people, goods, and high daily volumes of cross-border transactions and international commerce. The cross-disciplinary partnership between the authors, one specializing in negotiable instruments and the other in choice-of-law, aims to offer a comprehensive and thorough analysis of the choice-of-law rules applicable to negotiable instruments. The internal structure of negotiable instruments' law is complex, which has given rise to a popular view favouring the mythological 'law merchant',[1] the exclusion of negotiable instruments from the scope of general contract and property law doctrines, and their subsequent exclusion from ordinary choice-of-law analysis. The central thesis of the book is to challenge this common view. Indeed, the complex structure of negotiable instruments creates a significant challenge for traditional contract and property doctrine and the choice-of-law analysis applicable to them.

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IX Conclusion

International Negotiable Instruments

This concluding chapter explains that the harmonization of the choice-of-law rules of negotiable ... more This concluding chapter explains that the harmonization of the choice-of-law rules of negotiable instruments is highly desirable. The fact that the book's comparative findings have revealed a significant difference between the substantive laws of various systems underlies the contemporary significance of the choice-of-law question for negotiable instruments law. Harmonization would lead to more justice and fairness between the litigating parties, enhance the value of predictability, and promote international commerce and business. Moreover, in the contemporary world of increasing mobility of goods, international commerce, cross-border dealings, and the Internet, cases involving ‘international negotiable instruments’ law will only grow.

III Choice-of-Law Question, Three Major Developments, and the Need for Harmonization

International Negotiable Instruments

This chapter focuses on the question of choice-of-law and delineates its common thread within con... more This chapter focuses on the question of choice-of-law and delineates its common thread within contemporary private law choice-of-law rules. In particular, it demonstrates that despite the variety of names and titles, one can point to three cornerstone developments within the contemporary choice-of-law doctrine, which all can be traced to different degrees of divergence within the various systems. The first development is a relaxation within the classical classification of the subject according to the presence of the so-called ‘foreign element’ in the factual matrix of the case. The second development is the advances of the so-called ‘party autonomy’ principle according to which the parties can agree on the identity of the applied law. Finally, the third development is the advances of the so-called ‘most significant relationship’ (MSR) principle according to which courts are required to assess the factual situation of a case as a whole and to evaluate the significance of the various ...

IV Negotiable Instruments Choice-of-Law Rules in the Various Systems

International Negotiable Instruments

This chapter studies the existing choice-of-law frameworks set in the statutory provisions under ... more This chapter studies the existing choice-of-law frameworks set in the statutory provisions under the UK Bills of Exchange Act, the Geneva Conflicts Conventions, the American Second Restatement, and the Inter-American Convention. These various frameworks show very little evidence of the three major developments outlined in the previous chapter. Generally, the various frameworks have remained loyal to the classical choice-of-law doctrine of stringent territorial connecting factors. There is almost no trace of party autonomy or the most significant relationship principle. The requirement of a ‘foreign element’ presence in the factual matrix of the case seems to be the foremost precondition to choice-of-law analysis. Finally, the chapter demonstrates the global adherence to the ‘several laws’ approach; the advantage of avoiding a ‘single rule’ for the selection of a law applicable to a contract; and the desirability of having the same law governing both intrinsic and extrinsic validity ...

VII The Boundaries of the Proposed Argument

International Negotiable Instruments

This chapter examines the scope and limits of the proposed extension of the party autonomy and mo... more This chapter examines the scope and limits of the proposed extension of the party autonomy and most significant relationship (MSR) principles to negotiable instruments. First, it challenges the validation principle, being an apparent major limitation to the proposed broad scope argument. Second, the chapter discusses the relevance of the argument to such issues as the proprietary aspects of the instruments, remedies and limitation periods, and the holder's duties. Third, it elaborates on the relevance of the proposed argument beyond bills of exchange, promissory notes, and cheques. Specifically, the chapter explores whether the suggestions could be extended and applied to choice-of-law rules in areas where the notion of negotiability has traditionally played a role: that is, investment securities and documents of title. Fourth, the chapter sets a limit to the scope of the argument and explains in which cases the organizing principles of party autonomy and MSR shall not be applied.

Which law applies to negotiable instruments

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