Asked by Kayla Olson on May 28, 2024
Verified
Identify the defenses that can be used against a holder in due course and those defenses that cannot be used against a holder in due course.
Holder in Due Course
A party possessing a negotiable instrument, such as a check or promissory note, in good faith and for valuable consideration, with certain legal protections.
- Scrutinize the privileges and safeguards afforded to, and contestable by, a holder in due course.
- Determine the circumstances that allow for a defense against a holder in due course to be claimed.
Verified Answer
LV
Lucas VenegasMay 29, 2024
Final Answer :
Real defenses are those that can be used to avoid payment to all holders, including holders in due course. Real defenses include:
(a) infancy, to the extent that it is a defense to a simple contract;
(b) any other incapacity, duress, or illegality of the transaction that renders the obligation void;
(c) fraud in the execution;
(d) discharge in insolvency proceedings;
(e) any other discharge of which the holder has notice when he takes the instrument; (f) unauthorized signature; and (g) fraudulent alteration. Personal defenses are available against holders other than holders in due course. Personal defenses include:
(a) lack of consideration;
(b) failure of consideration;
(c) breach of contract;
(d) fraud in the inducement;
(e) illegality that does not render a transaction void; (f) duress, undue influence, mistake, misrepresentation, or incapacity that does not render the transaction void; (g) setoff or counterclaim; (h) discharge of which the holder in due course does not have notice; (i) nondelivery of an instrument; (j) unauthorized completion of an incomplete instrument; (k) payment without obtaining surrender of the instrument; (l) theft of a bearer instrument or of an instrument payable to him; and (m) lack of authority of a corporate officer, agent, or partner as to the particular instrument, where such officer, agent, or partner had general authority to issue negotiable paper for his principal or firm.
(a) infancy, to the extent that it is a defense to a simple contract;
(b) any other incapacity, duress, or illegality of the transaction that renders the obligation void;
(c) fraud in the execution;
(d) discharge in insolvency proceedings;
(e) any other discharge of which the holder has notice when he takes the instrument; (f) unauthorized signature; and (g) fraudulent alteration. Personal defenses are available against holders other than holders in due course. Personal defenses include:
(a) lack of consideration;
(b) failure of consideration;
(c) breach of contract;
(d) fraud in the inducement;
(e) illegality that does not render a transaction void; (f) duress, undue influence, mistake, misrepresentation, or incapacity that does not render the transaction void; (g) setoff or counterclaim; (h) discharge of which the holder in due course does not have notice; (i) nondelivery of an instrument; (j) unauthorized completion of an incomplete instrument; (k) payment without obtaining surrender of the instrument; (l) theft of a bearer instrument or of an instrument payable to him; and (m) lack of authority of a corporate officer, agent, or partner as to the particular instrument, where such officer, agent, or partner had general authority to issue negotiable paper for his principal or firm.
Learning Objectives
- Scrutinize the privileges and safeguards afforded to, and contestable by, a holder in due course.
- Determine the circumstances that allow for a defense against a holder in due course to be claimed.