Droit des Affaires 🖤 PDF

# Droit des Affaires The set of rules whose object is the legal relationships concerning the services provided by merchants. ## Part 1: Instruments of Credit ### Chapter 1: The Letter of Exchange Or **draft**, is a written instrument by which the **drawer** (creditor) orders a **drawee** (debtor)...

# Droit des Affaires The set of rules whose object is the legal relationships concerning the services provided by merchants. ## Part 1: Instruments of Credit ### Chapter 1: The Letter of Exchange Or **draft**, is a written instrument by which the **drawer** (creditor) orders a **drawee** (debtor) to pay a sum to a third party (**beneficiary**) on a pre-determined date. A commercial act by form, contrary to the check and the promissory note, commercial regardless of the persons who use it (merchants or not) and whatever the object of the claim for which it was issued (civil or commercial). Its mechanism is based on a three-party relationship: - **Drawer**: the one who issues the instrument - **Drawee**: the one who has to pay the instrument on the due date. - **Beneficiary**: the one to whom the payment has to be made. #### Section 1: Conditions of Validity for the Letter of Exchange ##### a-Conditions of Form The letter of exchange must be in writing, which is why the Moroccan legislator carefully regulates its drafting. ###### 1- Mandatory Mentions - Name "Letter of Exchange" included in the text of the instrument, - Mandate to pay a specific sum, - Name of the drawee, - Indication of the due date, - Place of payment, - Name of the beneficiary, - Indication of the date and place of creation of the LC and - Signature of the drawer. ###### 2- Optional Mentions - **Domiciliation clause:** When the LC is payable at a place other than the drawee's domicile, it is carried out through the drawee's bank. - **Clause against acceptance:** It obligates the holder to present the LC for acceptance especially when the drawer doubts that the drawee will pay on the due date. - **Clause of presentation for acceptance:** It prohibits the beneficiary or holder from presenting the LC to the drawee for acceptance before the due date. - **Clause of defense against acceptance:** It prohibits the beneficiary or holder from presenting the LC to the drawee for acceptance before the due date. - **Clause not to order:** Art.167 of the CC: authorizes the drawer to include in the text the words "not to order" or any equivalent expression. - **Clause of return without protest:** It releases the holder from the obligation to have a protest drawn up before taking legal action. - **Clause of aval:** Aval allows to guarantee the payment of the LC for all or part of its amount on the due date. ##### b-Conditions of Substance ###### Consent The consent of the signatory must be real and free from defects. ###### Defects of consent If the consent of the drawer is vitiated by error, fraud, or violence, this will result in the nullity of the LC. ###### Absence of consent - **False signature:** When the signature of a person is imitated, his consent is lacking, which may oppose the nullity of the instrument to the holder. - **Object:** The payment of a specific amount, if this amount is repeated in the same wording with different amounts, the smallest amount prevails (Art.136 of the CC). - **Capacity:** The LC must be issued by a person with the capacity to perform commercial acts, but it is not necessary to be a merchant. - **Incapacity of a minor:** The LC subscribed by minors who are not merchants is null and void with respect to them (Art.164 of the CC). - **The adult incapable:** The LC is null and void with respect to him, regardless of his status. - **Cause:** The drawer's desire to obtain credit from the bank by discounting. #### Section 2: The Endorsement of the Letter of Exchange A simple mention on the back of the instrument, there are several methods of endorsing the LC: ##### a-Transfer Endorsement To transfer the property of the beneficiary or initial holder (Endorser) to a new holder (Endorser), this authorizes the endorser to pay off a debt toward the endorsee or to discount the bill with a bank. Art.167 of the CC The endorsement must contain the signature of the endorser, who has the choice between three types of formulas: - **Nominative Endorsement:** Indication of the endorser's name as well as the need for the signature of the endorser. - **Endorsement by procuration:** The one by which the endorser delivers his instrument to the endorsee (banker) in order to collect it on his behalf. - **Blank Endorsement:** The endorsee is not designated, the holder puts his name as endorsee or inserts the name of another person as endorsee. - **Endorsement of guarantee:** The LC can be used by the holder for guarantee of a claim. - **Endorsement to bearer:** The LC can be endorsed to the bearer because it is likely to be issued to him. The three main effects of the transfer endorsement: - The transfer of ownership of the instrument with all the rights attached to it, - The guarantee obligation of the endorser and - The inopposability of exceptions. #### Section 3: The Guarantees of the Letter of Exchange The legal relationships arising from the LC are guaranteed, the CC provides in this regard for all commercial instruments: ##### A-The Provision A claim of the drawer against the drawee, it is the sum of money that the drawer holds on the drawee and that serves to pay the beneficiary of the LC at maturity. Its characteristics: it must exist on the due date, the latter must be certain, liquid and due. ##### B-The Acceptance A guarantee specific to the LC, does not exist in the promissory note nor in the check, this mention is important in the LC because it gives the instrument a guarantee of payment and allows for the discounting of the bill under good conditions. - Cases where presentation for acceptance is mandatory The drawer can consider that the letter should be presented for acceptance, with or without a time limit set. - Cases where presentation for acceptance is prohibited When the drawer wants to avoid the costs of a presentation for acceptance or when the drawee has asked the drawer not to impose acceptance on him. ##### C-Solidary Liability Art. 201 of the CC: All those who have drawn, accepted, endorsed or avalized an LC are jointly and severally liable to the holder. ##### D-The Aval An undertaking specific to the LC made by a third party to guarantee the performance of the obligation undertaken by a debtor of the LC. #### Section 4: Payment of the Letter of Exchange ##### a-Presentation of the Letter of Exchange for Payment The holder of the LC is obliged to present it for payment at maturity, as Art. 181 of the CC designates 4 modes of maturity, the LC can be payable at sight, at a certain period after sight, at a certain period after a specific date and on a specific date. Art. 189 of the CC: Opposition to the payment of an LC is only allowed in case of loss or theft of the LC and for the purpose of redress or judicial liquidation of the holder. ##### b-Default of Payment of the Letter of Exchange and Recourse The unpaid holder, if he wants to preserve his rights, must have a protest drawn up in the event of non-payment. ###### Regarding Recourse for Default of Payment Recourse is exercised by the holder either at maturity, if payment has not been made, or before maturity in the following three cases: refusal of acceptance, cessation of payments by the drawee and cessation of payments by the drawer of a non-acceptable LC. ##### Chapter 3: The Check ###### Section 2: The Circulation of the Check ###### 1-The Transfer Endorsement It conveys to the endorsee all rights resulting from the check and facilitates discounting practice. ###### Conditions The endorsement must be written on the check or on the allonge, it cannot be made by the drawee, it cannot be partial, it must be signed by the endorser, this signature should be accompanied by the mention ###### Consequences - **Transmission of the provision:** Endorsement transfers all rights resulting from the check and ownership of the provision. - **Solidarity:** All persons obliged under a check are jointly and severally liable to the holder. - **Inopposability of exceptions:** The inapplicability of the incapacity of one of the signatories is considered. ###### 2-The Endorsement by Procuration Any check, even if it is not endorsable, can be endorsed by procuration, this type of endorsement is not analyzed as an act of disposal but as an administrative act. ###### Section 3: Payment of The Check ###### a-Presentation of the Check for Payment - **Payment at Sight:** The check is payable at sight and any contrary mention is considered unwritten, the check is payable to the holder lawfully. ###### The Place of Presentation The check must be presented for payment at the place indicated on the instrument, there are two types of domiciliation, one banking arising from practice and the other legal resulting from the definition given by the CC. ###### The Time Limit for Presentation The check issued in Morocco must be presented for payment within 20 days, the check issued outside Morocco and payable in Morocco within 60 days. ###### b-Indices of Payment - **Opposition to Payment:** To freeze the provision with the drawee and thus prohibiting him from paying the amount of a check. - **Protest for Non-payment:** In the event of the check being paid or unpaid in part upon presentation, the holder is required to have a protest drawn up. ##### Chapter 4: The Debit Card One of the payment instruments that is developing at the expense of the check, due to its relative security and the diversity of forms and uses that it allows, due to the development of e-commerce and the diversity of forms and uses that it allows. ###### 1-Conditions and Methods of Use of Debit Card The organization of the payment system by debit card occurs through an agreement, and requires two agreements: - One between the issuing institution and the merchant adherent and - The other between the issuing institution and the debit card holder. ###### Intervening Parties - **Issuing Body:** The banking institution that issues the card. To ensure interconnectivity between the different banking networks, the professional grouping of Moroccan banks has created the Interbank Monétique Center (CMB), it plays two main roles: - Acquiring payment and Interoperability platform for withdrawals. - **Merchant Adherents:** Merchants who have accepted the terms and conditions of the issuing organization and who are the ones to whom cardholders will make purchases. To process transactions by cards, they have a terminal connected to the issuing organization through electronic payment terminals (TPE). - **Cardholders:** All cardholders of the issuing organization. ###### Contractual Relationships - **Regarding the Cardholder Contract:** An adhesion contract whose terms and conditions must be accepted or refused in full by the holder. - **Regarding the Merchant Adherent Contract:** An adhesion contract with a fixed duration, tacitly renewable, whereby the merchant joining a network undertakes to accept payment by card. - **Regarding the effects of the legal relationship:** The order or the undertaking to pay given through a means of payment is irrevocable, it can only be opposed or payment made in case of loss or theft of the means of payment, of redress or judicial liquidation of the beneficiary. ###### 2-Functions of the Debit Card - **Traditional Functions:** Withdrawal operations from ATMs or cash machines, Payment operations for the settlement of purchases of goods or services from merchants adhering to the Moroccan market or abroad and Credit operations. - **Modern Functions:** - **Online payment:** Practice has established this mode of payment on the internet, which requires the combination of the following elements (Non-confidential face number (16 digits): allowing to identify the card and to verify its existence, Confidential code and keypad for entering the confidential code on the secure merchant site. - **Electronic Payment:** Electronic money and mobile payment.