Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

تمرين 4

L as Vegas Sands, LLC v. Nehme
United States Court of Appeals, Ninth Circuit, 632 F.3d 526 (2011).
BACKGROUND AND FA CTS?Amine Nehme, a California resident, applied for credit at the Venetian Resort Hotel Casino in Las Vegas, Nevada. Nehme was granted $500,000 in credit. He soon accrued more than $1.2 million in gambling debts to the Venetian, which he paid. About a year later, Nehme deposited $1,000 with the Venetian and signed a gambling marker for $500,000. Typically, a gambling marker is dated, includes the gambler's name and that of his or her bank and the bank account number, and states "Pay to the Order of [the casino's name]."
In this case, though, the line following "Pay to the Order of " was apparently left blank, which made the marker a bearer instrument. Nehme quickly lost $500,000 gambling and left the casino. The Venetian presented the marker for payment to Bank of America, Nehme's bank, which returned it for insufficient funds. The casino's owner, Las Vegas Sands, LLC, applied Nehme's deposit against the marker and filed a suit against him to recover the remainder-$499,000-plus interest, claiming that he had failed to pay a negotiable instrument. A federal district court issued a summary judgment in the Venetian's favor. Nehme appealed.
IN THE LANGUAGE OF THE COURT BEA, Circuit Judge: * * * *
The * * * claim in the Venetian's complaint against Nehme is for failure to pay the marker.
* * * * * * * Subsection 6 of [Nevada Revised Statutes Section 104.3104, Nevada's version of UCC 3-104] provides that "an order that meets all of the requirements of subsection 1 * * * and otherwise falls within the definition of 'check' in subsection 6 is a negotiable instrument and a check." In pertinent part, subsection 1 defines a negotiable instrument as "an unconditional * * * order to pay a fixed amount of money * * * if it * * * is payable on demand or at a definite time; and * * * does not state any other undertaking by the person promising or ordering payment to do any act in addition to the payment of money." One definition of a check in subsection 6 is a "draft * * * payable on demand and drawn on a bank." [Emphasis added.]
Here, the marker is a negotiable instrument and a check because it provides a mechanism for payment of $500,000 from Bank of America to the order of the Venetian [as the holder], is signed by Nehme, and is payable on demand because it states no time or date of payment. On the face of the marker, the order is unconditional and states no undertakings by Nehme other than to pay a specific sum of money. The marker therefore was valid and enforceable as a negotiable instrument under Nevada law. The Venetian presented the marker to Bank of America for payment, and the marker was returned for insufficient funds. Thus, the Venetian has a right to enforce the marker against Nehme unless Nehme can establish a defense to liability.
DECISION AND REMEDY?The U.S. Court of Appeals for the Ninth Circuit agreed with the lower court that the marker was a negotiable instrument. The appellate court reversed the lower court's judgment, however, and remanded the case for a trial to determine whether Nehme could establish a defense to liability on other grounds.
WHAT IF THE FA CTS WERE DIFFERENT? Suppose that the marker had stated "Payable to the Order of the Venetian." Could the casino have transferred it for collection? If so, how?
THE ECONOMIC DIMENSION What is the advantage to the Venetian of the court's holding that Nehme's marker is a negotiable instrument?