Law 182/2022 amending and supplementing Law no.59/1934 on cheques was published in the Official Gazette (Part I) no.599 of 20 June 2022, with effect from 23 June 2022.
The recently published regulatory act aims to:
– adapting the legal provisions in force so as to allow, in addition to the current situation of the remittance of the instrument for collection by the holder to his bank in original, on paper, and the remittance for collection of the image of the debit instruments, transmitted through a secure electronic channel, ensuring a high level of security;
– the introduction or rewording of certain mandatory elements on the cheque;
– clarifying the role of each participant in the cheque payment process in line with current payment practices and against the background of the development of electronic communications in payment relationships;
– introducing the possibility of withdrawing a debit instrument from settlement at the written request of the payee;
– updating the legal terminology, simplifying and supplementing the articles in order to clarify their meaning;
– the elimination of the circular cheque, the crossed cheque, the cheque payable on account, the non-transferable cheque and the traveller’s cheque, in order to ensure the adaptation of the law to current banking practice, as these types of instruments are no longer used.
Changes to the elements of the cheque:
According to Law no.182/2022, the cheque includes the following elements:
1. The name of the cheque expressed in Romanian;
2. Unconditional order to pay a certain amount of money;
3. The name of the credit institution that has to pay, having the quality of drawer;
Place of payment;
5. Date and place of issue;
6. Signature of the issuer as drawer. The signature of the drawer means the holographic signature of the natural person acting as drawer or of his authorised representative, respectively the holographic signature of the legal representatives or authorised representatives of the legal persons who are bound or of other categories of entities using such instruments, as the case may be;
7. Name/name of the drawer, i.e. the full name of the natural person or the name of the legal person or entity which is bound. If the name of the drawer exceeds the space allotted on the instrument, the first characters of the first name and surname or of the name of the drawer shall be entered on the cheque, within the limit of the space specifically allotted, without this causing the cheque to be void;
8. The drawer’s code, i.e. a unique identification number taken from the drawer’s identification or registration documents.
The original cheque is the cheque issued on paper, bearing a holographic signature. The image of the original cheque is the electronic copy of the original cheque.
A cheque that is missing one of the above elements, except for the place of payment and the place of issue, shall not be considered as a cheque.
If the place of payment is missing, it shall be considered payable at the drawer’s registered office.
Other important modifiers/completers
The cheque can only be drawn on a credit institution.
The cheque can only be issued if the drawer has cash in his account opened at the drawer.
The cheque cannot be accepted. The acceptance message written on the cheque is considered unwritten.
The cheque cannot be drawn on the drawer himself.
Any interest clause written on the cheque shall be deemed unwritten.
The cheque is payable only to the drawee credit institution.
In a cheque the amount of payment is written in letters and figures, and in case of discrepancies, the amount of payment written in letters prevails.
If the payment amount is written more than once, either in letters or in figures, in case of discrepancies the payment amount is the lower.
If the cheque bears the signatures of persons who are incapable of being bound by the cheque, forged signatures or signatures which for any other reason would not bind the persons who signed the cheque or on whose behalf it was signed, the obligations of the other signatories remain valid.
A natural person who signs a cheque as the legal representative or attorney-in-fact of a person for whom he is not empowered to represent him for that purpose is personally liable under the cheque and, if he has paid, has the same rights as the person purporting to be represented or authorized would have had.
The same rule applies to a representative or agent who has exceeded his authority.
Any person may be bound by a cheque through his agent or, as the case may be, his attorney-in-fact, even if the mandate is conceived in general terms, as regards the right of the agent to issue or sign cheques.
The consignor is responsible for payment. Any clause, by which the drawer discharges himself of this responsibility, is considered unwritten.
A stipulated cheque payable to a certain person, with a clause not to order or an equivalent expression, is transferable only in the form and with the effects of an ordinary assignment.
The draft must be unconditional. Any condition to which it is subject is deemed to be unwritten.
Partial drafts are void. The endorsement of the drawer is also void.
The bearer tick is equivalent to a blank tick.
The drawee’s endorsement has the value of a receipt, unless the drawee has more than one drawee and the endorsement is made in favour of a drawee other than the drawee on whom the cheque was drawn.
The endorsement must be written on the cheque; it must be signed by the drawer or by his legal representative or, where applicable, by his authorised representative.
The holder of a cheque transferable by endorsement is considered legitimate if he justifies his right by an uninterrupted series of endorsements, even if the last endorsement is blank.
Deleted drafts shall in this respect be considered unwritten. If a blank endorsement is followed by another endorsement, the signatory is deemed to have acquired the cheque by blank endorsement.
If a person has lost possession of a cheque for any reason, the holder of the cheque, whether it is a bearer cheque or a cheque transferable by endorsement, to which the holder is entitled, shall not be obliged to surrender the cheque unless he has acquired it in bad faith or has made a serious mistake in acquiring it.
Persons against whom an action has been brought on the basis of a cheque may not raise against the possessor defences based on their personal relationship with the drawer or previous possessors, unless the possessor acquired the cheque with the intention of damaging the debtor.
If the endorsement contains the words value for cover, for collection, for power of attorney or any other wording implying a mere mandate, the holder may exercise all the rights deriving from the cheque, but may endorse it only by way of power of attorney.
The obligors may in this case only raise against the holder the defences which they could have raised against the endorser.
The endorsement made after protest or other equivalent declaration or after expiry of the time limit for presentation produces only the effects of an ordinary assignment.
The endorsement is given on the cheque. It shall be expressed by the words: for the endorsement or any equivalent form; it shall be signed by the endorser.
It should be noted that, according to Article 26 of Law 59/1934, payment of a cheque may be guaranteed by a surety for all or part of the amount. This guarantee may be given by a third party other than the drawer or even by a signatory of the cheque.
The endorsement must show who it is given for. In the absence of this it is considered given for the endorser
The endorser is held in the same way as the person for whom he has given the endorsement.
His obligation is valid even if the obligation he has guaranteed would be void for any reason other than a formal defect.
When the guarantor pays the cheque, he acquires the rights resulting from the cheque against the person for whom he has guaranteed and against those who are liable to him under the cheque.
The cheque is payable on demand. Any clause to the contrary is considered unwritten
The cheque issued and payable in Romania must, under penalty of forfeiture of the right of recourse against guarantors, guarantors and the drawer, be presented for payment within 15 days.
The cheque issued in a foreign country and payable in Romania must be presented within 30 days, and if issued outside Europe within 70 days.
Presenting a cheque to the payer’s credit institution or to a clearing house is equivalent to presenting it for payment.
Presenting a cheque for payment can be done in original or by truncation.
Truncation means the computer process consisting of the following successive operations:
a) the transposition into electronic format of the relevant information from the original cheque or from the cheque presented for collection by the payee through a secure electronic channel;
b) the reproduction of the image of the original cheque or the image of the cheque presented for collection by the payee through a secure electronic channel; and
c) the transmission of electronic information obtained through the operations referred to in points (a) and (b) to the paying credit institution.
The presentation for payment of a cheque by truncation produces the same legal effects as the presentation for payment of the original cheque, provided that the latter has been issued in compliance with the provisions of the law.
It should be noted that credit institutions may use the truncation procedure, provided that there is a prior agreement between them and between the beneficiary’s credit institution and the beneficiary in the context of a payment and document transfer arrangement or an agreement consisting of their adherence to a payment system
In the relationship between credit institutions, the information relevant for truncation, contained in the original cheque or in the image of the original cheque, transmitted through a secure electronic channel, is established according to the convention.
The image of the original cheque is an electronic copy of the original cheque. The image of the original cheque must comply with the standards established according to the Convention.
When presenting for payment an original cheque or an image of the original cheque by truncation, the credit institution is obliged:
a) verify that the original cheque or the image of the original cheque complies with the legal provisions as to form and content, including the succession of endorsements, with the exception of the authenticity of the signatures of the drawer and endorsers or their legal representatives or, where applicable, their authorised representatives;
b) guarantee the accuracy and conformity of the electronically transmitted truncation-relevant information with the data in the original cheque, as well as the conformity of the image of the cheque with the original cheque.
A credit institution presenting a cheque for payment by truncation shall be liable for any loss incurred by failing to comply with its obligations.
Total or partial refusal to pay a cheque presented for payment by truncation shall be made in electronic form by the paying credit institution.
On the basis of the refusal, the credit institution which holds the original cheque or to which the payee has provided the image of the original cheque, through a secure electronic channel, shall endorse the original cheque:
a) the date on which it was presented for payment, for verification;
b) the statement Refused accompanied by the reasons for the refusal to pay, dated and signed by the legal representatives or, where applicable, their authorised representatives.
If the payee has sent the image of the original cheque to his credit institution via a secure electronic channel, in order to exercise the right of protest/return, he shall present the original cheque for the purpose of recording the evidence of the refusal of payment as soon as he has received the notification of refusal, under the conditions established in the prior agreement concluded between them. Any loss or impossibility of exercising specific rights resulting from the non-presentation of the original cheque shall be attributable to the beneficiary of the cheque, in which case the credit institution shall not be liable for any damages if it has informed the beneficiary of the existence of the refusal.
Issuance of a cheque on encashment, through a secure electronic channel, can be made by beneficiaries who meet the eligibility conditions set by credit institutions through their internal rules and policies.
The transmission by the payee of the image of the original cheque in electronic format must be carried out by technical means and procedures that ensure its authenticity and integrity, according to international or European security standards.
The remittance for collection of a cheque through a secure electronic channel produces the same legal effects as the remittance for collection of the original paper cheque, provided that the latter was issued in compliance with the provisions of the law.
When a cheque is payable in a currency which is not legal tender at the place of payment, the amount may be paid, within the period of presentation of the cheque, in the currency of the country, according to its value on the day of payment. If payment has not been made on presentation, the holder may, at his option, request that the amount be paid in the currency of the country, either at the rate on the day of presentation or at the rate on the day of payment.
Payment of cheques issued in other currencies and which are payable in lei at the place of payment shall be made by converting the amounts at the exchange rate of the National Bank of Romania valid on the day the cheque is presented for payment.
All those who are bound by the cheque are jointly and severally liable to the holder.
The holder may claim against all these persons, individually or collectively, without being bound to observe the order in which they are bound.
When the presentation of the cheque, the formulation of the protest or the equivalent statement within the time limits provided for in this law is prevented by an unreasonable obstacle (legal provision, fortuitous event or force majeure), these time limits shall be extended in accordance with the law.
The holder is obliged to inform without delay the guarantor or the drawer, by registered letter or by any means of communication ensuring confirmation of receipt, of the fortuitous event or force majeure and to write on the cheque a note to this effect dated and signed by him.
After the fortuitous event or force majeure has ceased, the holder must present the cheque for payment without delay.
If the fortuitous event or force majeure lasts for 15 calendar days, calculated from the date on which the holder has informed the guarantor or the drawer of the fortuitous event or force majeure, even if the notification is made before the expiry of the time limit for presentation, the rights of withdrawal may be exercised without the need for presentation.
Purely personal acts of the holder or of the person entrusted by him with the presentation of the cheque or with the drawing up of the protest shall not be deemed to constitute fortuitous events or force majeure.
Within 5 days of receipt of the summons, the debtor may lodge an appeal against execution.
The appeal must be lodged with the enforcement court, which will hear it in accordance with the Code of Civil Procedure, urgently and as a priority, before any other case.
The decision pronounced on the appeal can only be appealed within 15 days of the pronouncement.
The court may suspend enforcement only if the appellant, by registering falsely, does not recognise his signature or that of his legal representatives or agents or does not recognise his power of attorney.
In the event of a stay of execution, the creditor will be able to obtain security.
The National Bank of Romania is the competent authority to issue rules for the implementation of this la
Legal basis:
- Law 59/1934 on the CEC;
- Law 182/2022 on the amendment and completion of Law 59/1934 on the cheque