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Chapter

Cover Sealy and Hooley's Commercial Law

18. Negotiable instruments  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter introduces negotiable instruments as a method of payment in commercial transactions. The law governing negotiable instruments merits consideration for two reasons. First, negotiable instruments are still used as a method of making payment in the commercial world, especially in certain areas of international trade. Secondly, the law relating to negotiable instruments encapsulates many of the fundamental principles and concepts of commercial law in general. This chapter first considers the definition of a negotiable instrument, as well as the concepts of ‘instrument’ and ‘negotiability’, before explaining how instruments come to be negotiable. It also discusses different types of negotiable instrument such as bills of exchange, cheques, promissory notes, bank notes, treasury bills, share warrants, and certificates of deposit. Finally, it describes the advantages of a negotiable instrument as a mode of payment.

Chapter

Cover JC Smith's The Law of Contract

8. Intention to create legal relations  

This chapter discusses the intention to create legal relations in the formation of a contract in domestic or social and commercial transactions. In a domestic or social context, there is a presumption that the parties do not intend to create legal relations. In a commercial context, however, the reverse applies and it is presumed that the parties do intend to create legal relations. No matter which presumption initially applies, that presumption may be rebutted by evidence to the contrary. The chapter concludes that it will not always be easy to decide whether an arrangement is more ‘social’ than ‘commercial’ due to the lack of unanimity in cases such as Esso Petroleum Ltd v Commissioners of Customs and Excise. Courts continue to be split on whether or not an intention to create legal relations is present in particular disputes.

Chapter

Cover Sealy and Hooley's Commercial Law

17. Payment cards and electronic money  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter focuses on the use of payment cards in commercial transactions, taking into account traditional credit and debit cards and also the more modern contactless instruments, including smartphones, which has been made increasingly available through mobile payment technology. This chapter begins with a discussion of the main types of payment card in general circulation in the UK, including credit (and charge) cards, debit cards, ATM cards, and multifunctional cards. It then considers contractual networks and the regulation of contractual relationships and finally liability for unauthorised transactions and connected lender liability.

Chapter

Cover Contract Law

4. Contracts and informal relations  

The intention to create legal relations

This chapter focuses on the requirement that the parties to a contract must have the intention to create legal relations for it to become legally binding. It considers how we decide whether the parties to a particular agreement had the intention to enter into legal relations, showing that English law operates by means of rebuttable presumptions. It then examines cases where the presumption is that the parties did not intend to create legal relations—that they intended their transaction to be merely friendly or social, rather than legal. It also discusses commercial transactions, where the presumption is reversed, and more specifically the types of commercial transactions that are structured to place them outside the bounds of legal enforcement. The chapter includes the case of Balfour v Balfour [1919] 2 KB 571 (CA).

Chapter

Cover Sealy and Hooley's Commercial Law

16. Modern payment systems  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter examines modern payment systems for commercial transactions, where payment using physical notes and coins is clearly inappropriate. Various forms of payment mechanisms and payment systems have been developed. This chapter first considers the nature of a funds transfer and the terminology used to describe a funds transfer operation before discussing credit/debit transfers, clearing and settlement, clearing systems and clearing rules, and the duties of the banks involved in a funds transfer. Finally, the chapter also analyses countermand, completion of payment as between payer and payee, and unwanted payments.

Chapter

Cover Sealy and Hooley's Commercial Law

19. Bills of exchange  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter focuses on bills of exchange, especially in the context of international trade. It first provides an overview of how bills of exchange are used as a method of payment before discussing the relevant provisions of the Bills of Exchange Act 1882. It then considers the definition of a bill of exchange, how a bill of exchange is transferred, and persons entitled to the benefit of the obligation on the bill. It also examines the general principles governing liability on the bill of exchange as well as the enforcement and discharge of the bill. Finally, it looks at mistaken payment, focusing on cases where the payment was received in good faith and in ignorance of the mistake.

Chapter

Cover Sealy and Hooley's Commercial Law

20. Cheques and miscellaneous payment instruments  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter focuses on the use of cheques and similar instruments as a mode of payment in commercial transactions, and discusses the relation between them and bills of exchange (of which they are a specialised type). Cheques are intended as instruments which will immediately be paid, whereas bills of exchange are typically drawn payable at a future date and used as a credit instrument. Unlike bills of exchange, cheques are not, and are not intended to be, accepted by the bank on which they are drawn. This chapter first explains what a cheque is, and discusses the likely future of the institution, before discussing promissory notes, banker’s drafts, and travellers’ cheques.

Chapter

Cover Sealy and Hooley's Commercial Law

4. Introduction  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter introduces the law of agency. It first examines the legal concept of agency, focusing on its definition and how it differs from other power–liability relationships. It then looks at examples of types of agent, such as auctioneers, directors, partners, and lawyers. It also considers agents who play a particular role in commercial transactions, namely: factors, brokers, del credere agents, confirming houses, and commission agents. Finally, it discusses the harmonisation of the law via the Geneva Convention on Agency in the International Sale of Goods, held in 1983.

Chapter

Cover Commercial Law

10. An introduction to the sale of goods  

This chapter discusses the law relating to the sale of goods, which lies at the heart of commercial law and regulates sales of different kinds from domestic retail to cross-border internet transactions. Sale of goods law also lies at the heart of other aspects of commercial law, such as the law of agency, where agents are often appointed solely for the purpose of selling their principal’s goods. Contracts for finance and for insurance are further examples of transactions that often depend on the sale of goods for their entire purpose. It must be noted that a contract of sale is still a contract, even if it has special features. Therefore, all elements for establishing the contract must be present, these being offer, acceptance, consideration, certainty, and the intention to create legal relations.