A cheque may not be accepted. The holder of a cheque is not required to present it for acceptance, and any statement written on the cheque that orders such presentment is legally ineffective and must be disregarded. Unlike a bill of exchange or a promissory note, a cheque is payable only at sight or on demand. This means a cheque always matures immediately upon its issuance. Consequently, the holder can ascertain whether the drawee bank will honor the instrument simply by presenting it for payment rather than seeking a prior promise to pay.
Certification of a cheque is a distinct process that should not be confused with acceptance. Certification is a confirmation provided by the drawee bank that the drawer has sufficient funds in the account to cover the sum specified. It is important to note that a bank may only certify a cheque upon the specific request of the drawer. The bank is not permitted to certify a cheque at the request of the holder. Therefore, certification serves as a guarantee of fund availability at the time of the request rather than a formal acceptance of a future liability.
Presentment for Acceptance When Excused
Presentment for acceptance in a timely manner is usually a crucial step for a holder to exercise their rights. However, the law provides excuses when a holder is prevented from doing so by circumstances beyond their control. Article 797 of the Commercial Code addresses cases of force majeure, where legal prohibitions by a state or other insurmountable obstacles prevent timely presentment.
Where such an absolute prevention exists, the time limits for presentment or the drawing up of a protest are extended. The holder must give notice of the force majeure to their endorser without delay. This notice must be dated, signed, and specified on the bill itself or on an allonge. Once the force majeure situation terminates, the holder is required to present the bill for acceptance or payment without delay and, if necessary, draw up a formal protest.
If the force majeure continues for more than thirty days after the maturity of the bill, the holder may exercise their right of recourse immediately. In this scenario, neither presentment nor the drawing up of a protest is necessary to hold other parties liable. For bills drawn at sight or at a fixed period after sight, this thirty-day limit begins from the date the holder gave notice of the force majeure to the endorser.
Additional Grounds for Excusal
Beyond force majeure, most legal systems and practical interpretations of commercial law recognize other situations where presentment is excused and the bill may be treated as dishonored. These typically include cases where the drawee is a fictitious person or someone incapable of entering into a contract, or where the drawee cannot be found after a reasonable search.
Article 784 of the Commercial Code indicates that a protest should state whether the drawee has been unsuccessfully summoned or cannot be found. This implies that if a drawee is unreachable, the formal requirement for physical presentment is excused, provided the holder documents the situation through a protest. Furthermore, if the drawee is deceased or insolvent, the instrument should be presented to their legal representatives or the official assignee of the insolvent estate. While the Ethiopian law is relatively concise on these points, the necessity of presentment naturally lapses when the specific person intended to accept the bill is no longer reachable or legally capable of acting.
If a drawee bank mistakenly certifies a cheque at the request of a holder rather than the drawer, does this act create any legal liability for the bank under current Ethiopian commercial standards?