The End of Negotiable Instruments Bringing Payment Systems Law Out of the Past

by Rogers, James Steven

• ISBN13: 9780199856220
• ISBN10: 0199856222
• Format: Hardcover
• Copyright: 2011-12-23
• Publisher: Oxford University Press

Summary

InThe End of Negotiable Instruments: Bringing Payments Systems Law Out of the Past, author James Rogers challenges the basic assumptions of the law of checks and notes and its history, and provides a well-reasoned account of how the law could be changed to better suit the evolution of new payment technologies. The modern American law of payment systems is in disarray. Efforts to create a unified body of law for payment systems have so far been unsuccessful. Part of the reason for that failure is the assumption that the existing law works well for the traditional paper-based check system, and that problems have been created only by the evolution of new technologies.The End of Negotiable Instrumentsargues that this assumption is unfounded. The basic law of checks is itself anachronistic. There are no other books that undertake a similar analysis--there are legal treatises on the law of checks and notes, but all of them take for granted the basic assumptions challenged in this book. Several articles were published in the late twentieth century concerning the dispute over the application of certain doctrines of traditional negotiable instruments law to modern consumer finance transactions, but none of this literature went on to consider the broader question of whether there is anything worthwhile left in negotiable instruments law.

Author Biography

James Steven Rogers is Professor of Law at Boston College Law School, where he teaches commercial law, payment systems, and contracts. Professor Rogers has played a major role in the development of modern commercial law. He served as Reporter (principal drafter) for the Drafting Committee to Revise UCC Article 8, which established a new legal framework for the modern system of electronic, book-entry securities holdings through central depositories and other intermediaries. He was also involved in the projects on negotiable instruments (UCC Articles 3 and 4) and secured transactions (UCC Article 9).

Professor Rogers is widely published in law reviews on subjects of modern commercial law and bankruptcy, particularly in the fields of investment securities, negotiable instruments, and the history of Anglo-American commercial law. He served as one of the United States delegates to the Hague Conference on Private International Law project to negotiate and draft Convention on Choice of Law for Securities Holding through Securities Intermediaries and as a member of Drafting Group for that Convention. Prior joining the Boston College Law School faculty, James Steven Rogers practiced with the firm of Sullivan & Worcester in Boston, Massachusetts and clerked for Judge Bailey Aldrich of the United States Court of Appeals for the First Circuit. He received a J.D. magna cum laude from Harvard Law School in 1976, where he served on the Harvard Law Review and was awarded the Fay Diploma for graduating first in his class in cumulative G.P.A. He received his A.B. summa cum laude from the University of Pennsylvania, 1973, where he studied philosophy and history.

Table of Contents

Preface	p. xi
Introduction	p. xiii
The Sorry State of Modern Payment Systems Law	p. 1
Payment Systems Law in the Twentieth Century	p. 2
What is Negotiable Instruments Law?	p. 7
Why is Payment Systems Law Anachronistic?	p. 12
What is the Anachronism: Negotiability or Negotiable Instruments Law?	p. 17
The Puzzling Persistence of the Law of Checks and Notes	p. 19
The Traditional Account of Negotiability	p. 21
The Law of Bills and Notes in the Classical Era	p. 24
Transfer of Bills and Notes in the Eighteenth and Nineteenth Centuries	p. 31
Origins of the Myth of Negotiability	p. 39
Paperless Paper	p. 45
Reification and Documents of Title	p. 47
Reification and Securities	p. 49
Reification and Notes	p. 54
Reification and Checks	p. 58
Metaphor and Reality	p. 64
Reports of the Death of the Holder in Due Course Doctrine are Greatly Exaggerated	p. 68
The Demise of Holder in Due Course Doctrine in Consumer Sales	p. 69
What was Really Wrong With the Holder in Due Course Doctrine?	p. 73
Continuing Applications of the Holder in Due Course Doctrine	p. 77
Mortgages and the Holder in Due Course Doctrine	p. 82
What to Do about the Remaining Problems Caused by the Holder in Due Course Doctrine	p. 89
A Visit to the Museum of Negotiable Instruments Law	p. 94
Postdating and Antedating	p. 94
Signatures by Agents	p. 96
Alteration	p. 102
The Bank Always Loses	p. 111
Basic Principle of Loss Allocation	p. 112
History of Check Collection Law	p. 125
The Cost of Confusion	p. 134
Are Checks Ever Transferred?	p. 146
Check Transfer in Payment Systems Coursebooks	p. 147
Check Transfer in Cases	p. 152
Consequences of Confusion about Check Transfer	p. 163
What Would a Modern Law of Promissory Notes Look Like?	p. 167
Actions on Notes: Elements and Defenses	p. 167
Presentment, Notice of Dishonor, and Protest	p. 170
Renewal Notes	p. 176
The Curious History of the Accommodation Party Provisions	p. 179
Accommodation Parties and Guarantors	p. 187
Suretyship Defenses	p. 192
Promissory Notes are Just Contracts	p. 198
What Would a Modern Law of Checks Look Like?	p. 200
Indorsement of Checks	p. 202
Lost or Stolen Bank Checks	p. 205
The Unnecessary Complexity of the Check Collection Rules	p. 209
The Unnecessary Complexity of the Check Fraud Rules	p. 216
Impostors and Fictitious Payees	p. 221
Checks as Payment Systems Law Rather than Negotiable Instruments Law	p. 225
Overcoming the Past	p. 229
Repeal, Revision, or Unification	p. 229
The Lessons for Practicing Lawyers and Judges	p. 234
The Lessons for Teachers of Payment Systems Law	p. 238
Conclusion	p. 240
Index	p. 243
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