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Romanian Post delivery
The study deals with the gradual harmonization process of negotiable instruments: bill of exchange and promissory notes, starting with the Hague Conferences of 1910 and 1912 until present day. By evoking the Geneva Conventions of 1930, which is a historical stage, the focus of this study is upon the work done under the aegis of the UN Commission for the International Trade Law. The work materialized, after two decades, in the New York Convention of 1988, which has an uncontestable scientific importance, due to the transactional solutions adopted.
Regarding the New York Convention of 1988, it is mentioned from the very beginning that it has an optional character. In other words, it does not fully replace the national laws on the bills of exchange. The regulations of the Convention become applicable only if the drawer clearly stipulates, in the header and the contents of the bill, one’s intention to apply these regulations. For this purpose, it is sufficient and necessary that the signatory should insert the mention that he/she understands to issue an international bill. The vocation of courts to make the bill subject to local laws or to competent law in compliance with the conflictual norms is excluded.
Another chapter is represented by the transfer of the bill of exchange, in its logic. Obviously, the ways vary, depending on whether we deal with a nominative bill, a pay-to-order bill or a bearer bill. The novelties introduced by the New York Convention of 1988 cover the pay-to-order bill. The changing of the holder may take place, as the study explains, in two ways. First, through the usual way of the endorsement by consent in favor of a particular endorsee. Second, through blank endorsement which is limited to the signature of the endorser, corroborated with the delivery of the bill to the acquirer, without interpreting it as transfer of a bearer bill which operates without the signature of the endorser.
Particular attention has been paid to the transfer of the negotiable instrument, and the consequences of a forged signature on the bill of exchange, and it is shown that, according to the New York Convention of 1988, the corresponding risk is borne by the person who is best situated in the bill of exchange nexus in order to protect oneself.
As a result of the transfer of the bill of exchange, under the above mentioned circumstances, the acquirer, whether a physical or legal person, becomes the holder of the negotiable instrument. His/ her status may differ, according to the New York Convention of 1988, as the study shows, depending on the capacity of mere holder or protected holder. The latter should have acquired a full negotiable instrument of a negotiable instrument that was completed later according to the mandate received, and should have ignored the exceptions regarding the negotiable instrument, any potential stable right of another person over the negotiable instrument and the fact that it had been refused for acceptance or for payment. The negotiable instrument is also supposed to not have been acquired in a fraudulent way and the prescription deadline of the action should not have expired.
Finally, the object of this chapter is to analyze the guarantee on the bill of exchange. The New York Convention of 1988 consecrated a dualist system, differentiating, on the one hand the usual warranty and, on the other hand, the aval.
To conclude, in the opinion of the author, the New York Convention of 1988, although it makes a step forward in harmonizing the legal regime of the bill of exchange, is a hybrid combination of Anglo-American solutions, sometimes better adapted to the requirements of commercial practices, and the solutions adopted by the Geneva Convention of 1930. As regards the Romanian law, suggestions of lege ferenda are made, inspired by a comparative analysis of the New York Convention of 1988 and the common law regime, in order to formulate remarks about the direction which the Romanian bill of exchange law should follow, by taking over the most pragmatic solutions if the existing law systems.
