2018 New Mexico Statutes
Chapter 55 - Uniform Commercial Code
Article 3 - Negotiable Instruments
Section 55-3-409 - Acceptance of draft; certified check.

(a) "Acceptance" means the drawee's signed agreement to pay a draft as presented. It must be written on the draft and may consist of the drawee's signature alone. Acceptance may be made at any time and becomes effective when notification pursuant to instructions is given or the accepted draft is delivered for the purpose of giving rights on the acceptance to any person.

(b) A draft may be accepted although it has not been signed by the drawer, is otherwise incomplete, is overdue, or has been dishonored.

(c) If a draft is payable at a fixed period after sight and the acceptor fails to date the acceptance, the holder may complete the acceptance by supplying a date in good faith.

(d) "Certified check" means a check accepted by the bank on which it is drawn. Acceptance may be made as stated in Subsection (a) or by a writing on the check which indicates that the check is certified. The drawee of a check has no obligation to certify the check, and refusal to certify is not dishonor of the check.

History: 1978 Comp., § 55-3-409, enacted by Laws 1992, ch. 114, § 134.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

1. The first three subsections of Section 3-409 [55-3-409 NMSA 1978] are a restatement of former Section 3-410. Subsection (d) adds a definition of certified check which is a type of accepted draft.

2. Subsection (a) states the generally recognized rule that the mere signature of the drawee on the instrument is a sufficient acceptance. Customarily the signature is written vertically across the face of the instrument, but since the drawee has no reason to sign for any other purpose a signature in any other place, even on the back of the instrument, is sufficient. It need not be accompanied by such words as "Accepted," "Certified," or "Good." It must not, however, bear any words indicating an intent to refuse to honor the draft. The last sentence of Subsection (a) states the generally recognized rule that an acceptance written on the draft takes effect when the drawee notifies the holder or gives notice according to instructions.

3. The purpose of Subsection (c) is to provide a definite date of payment if none appears on the instrument. An undated acceptance of a draft payable "thirty days after sight" is incomplete. Unless the acceptor writes in a different date the holder is authorized to complete the acceptance according to the terms of the draft by supplying a date of acceptance. Any date supplied by the holder is effective if made in good faith.

4. The last sentence of Subsection (d) states the generally recognized rule that in the absence of agreement a bank is under no obligation to certify a check. A check is a demand instrument calling for payment rather than acceptance. The bank may be liable for breach of any agreement with the drawer, the holder, or any other person by which it undertakes to certify. Its liability is not on the instrument, since the drawee is not so liable until acceptance. Section 3-408. Any liability is for breach of the separate agreement.

Repeals. — Laws 1992, ch. 114, § 237 repealed former 55-3-409 NMSA 1978, as enacted by Laws 1961, ch. 96, § 3-409, relating to draft not an assignment, effective July 1, 1992. Laws 1992, ch. 114, § 134, enacted a new section, effective July 1, 1992. For provisions of former section, see the 1991 NMSA 1978 on NMOneSource.com.

Under former law, oral acceptance is not binding upon the drawee. Clayton Townsite Co. v. Clayton Drug Co., 1915-NMSC-025, 20 N.M. 185, 147 P. 460; Hanna v. McCrory, 1914-NMSC-047, 19 N.M. 183, 141 P. 996.

Mere act of stamping bill of exchange "paid" by payee is not acceptance. Hanna v. McCrory, 1914-NMSC-047, 19 N.M. 183, 141 P. 996 (decided under former law).

Law reviews. — For article, "New Mexico's Uniform Commercial Code: Who Is the Beneficiary of the Stop Payment Provisions of Article 4?" see 4 Nat. Resources J. 69 (1964).

For note, "New Mexico's Uniform Commercial Code: Presentment Warranties and the Myth of the 'Shelter Provision'," see 4 Nat. Resources J. 398 (1964).

For article, "Essential Attributes of Commercial Paper - Part I," see 1 N.M. L. Rev. 479 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 11 Am. Jur. 2d Bills and Notes §§ 500, 503, 504, 506, 507, 510; 12 Am. Jur. 2d Bills and Notes § 1241.

Acceptance of checks by telegraph or telephone, 2 A.L.R. 1146, 13 A.L.R. 989.

Ratification by corporation of unauthorized acceptance of commercial paper by officer by acceptance and retention of benefits, 7 A.L.R. 1472.

Clearinghouse transactions as payment or acceptance of checks, 12 A.L.R. 998, 30 A.L.R. 1028.

What amounts to acceptance extrinsic to check, 26 A.L.R. 312.

Acceptance of cashier's check from debtor as absolute or conditional payment, 36 A.L.R. 470, 42 A.L.R. 1353, 45 A.L.R. 1487.

Bank's acceptance of check as affected by attempt to pay it otherwise than in cash, 38 A.L.R. 185.

Drawee's mere writing of his name on bill as an acceptance thereof, 48 A.L.R. 760.

Discharge of drawer or endorser of check by holder's acceptance therefor of something other than money, 52 A.L.R. 994, 87 A.L.R. 442.

Destruction of or refusal to return bill as an acceptance, 63 A.L.R. 1138.

Uniform Commercial Code: bank's right to stop payment on its own uncertified check or money order, 97 A.L.R.3d 714.

Provision in draft or note directing payment "on acceptance" as affecting negotiability, 19 A.L.R.4th 1268.

3A C.J.S. Alteration of Instruments § 66; 10 C.J.S. Bills and Notes § 37 et seq.