Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 7

FACTS William Bailey, M.D., executed a promissory note to California Dreamstreet, a joint venture that solicited investments in cattle breeding operations. California Dreamstreet subsequently sold the note to Cooperative Centrale Raiffeisen-Boerenleenbank B.A. (Bank).
The wording on the promissory note was unusual. In pertinent part it read: ''DR. WILLIAM BAILEY … hereby promises to pay to the order to CALIFORNIA DREAMSTREET … the sum of Three Hundred Twenty- Nine Thousand Eight Hundred ($329,800) Dollars.''
Dr. Bailey contended that the atypical wording ''pay to the order to'' rendered the note nonnegotiable, and refused to pay the Bank. The Bank, asserting that the note was negotiable, sued for payment.
DECISION Judgment for the Bank.
OPINION Rea, J. [The parties] agree that the sole issue is whether the unusual language in the note obliging Bailey to ''pay to the order California Dreamstreet'' renders the note nonnegotiable.
Whether an instrument is negotiable is a question of law to be determined solely from the face of the instrument, without reference to the intent of the parties.
[Citation.] To be negotiable, an instrument must ''be payable to order or bearer.'' Code § 3-104(1)(d). ''Payable to order'' is further defined by Code § 3-110(1), as follows:
(1) An instrument is payable to order when by its terms it is payable to the order *** of any person therein specified with reasonable certainty, or to him or his order, or when it is conspicuously designated on its face as ''exchange'' or the like and names a payee.
It is well established that a promissory note is nonnegotiable if it states only ''payable to (payee),'' rather than ''payable to the order of [payee].'' [Citations.] Bailey claims that the instant note, which states ''pay to the order to [payee],'' falls between these two alternatives and should therefore be deemed nonnegotiable.
The authorities are unhelpful. There is apparently no case on record in which a variance this small from the language of the Code has been called into question. Both parties direct the Court's attention to Official UCC Comment 5 to Code § 3-104, which states:
5. This Article omits the original Section 10, which provided that the instrument need not follow the language of the act if it ''clearly indicates an intention to conform'' to it. The provision has served no useful purpose, and it has been an encouragement to bad drafting and to liberality in holding questionable paper to be negotiable. The omission is not intended to mean that the instrument must follow the language of this section, or that one term may not be recognized as clearly the equivalent of another, as in the case of ''I undertake'' instead of ''I promise,'' or ''Pay to holder'' instead of ''Pay to bearer.'' It does mean that either the language of the section or a clear equivalent must be found, and that in doubtful cases the decision should be against negotiability.
In the Court's opinion, the Comment fails to persuasively support either party's position. Rules of grammar belie the Bank's argument that the preposition ''to'' is an apt substitute for ''of'' since the resulting sentence, read literally, is not just ambiguous but incomplete. On the other hand, the Comment expressly disavows Bailey's argument that the Code drafters intended to set forth certain ''magic words,'' the absence of which precludes negotiability.
What does emerge from the Comment is the need for certainty in determining negotiability. Though sensitive to this goal and to the potentially harsh result of such a finding, the court does not find the instant facts to present the kind of ''doubtful'' case which should be resolved against negotiability. In this context, the phrase ''pay to the order to'' can plausibly be construed only to mean ''pay to the order of.'' While other explanations are possible, none are realistic. To hold otherwise would, in this court's opinion, set an overly technical standard that could unexpectedly frustrate legitimate expectations of negotiability in commercial transactions.
INTERPRETATION An instrument is payable to order if it is payable to the order of an identified entity.
CRITICAL THINKING QUESTION Do you agree with the court's decision? Explain.