(Code 1981, §11-3-409, enacted by Ga. L. 1996, p. 1306, § 3.)
Cross references.- Criminal penalties for certification of check, draft, etc., where drawer does not have sufficient funds on deposit to cover amount of check, draft, etc., or for failure to set aside amount from drawer's account to cover check, draft, etc., after certification, § 7-1-843.
JUDICIAL DECISIONSANALYSIS
General Consideration.
Editor's notes.
- In light of the similarity of the provisions, decisions under former Code 1933, §§ 14-1101, 14-1705, 14-1706 and former Code Sections 11-3-410 and 11-3-411 are included in the annotations for this section.
Consideration given official comments.
- This section was adopted verbatim from § 3-410 of the Uniform Commercial Code, and the legislature had benefit of drafter's interpretation when it enacted this statute; therefore, due consideration should be given official comments as the court cannot say that legislature intended something else. Roswell Bank v. Atlanta Util. Works, Inc., 149 Ga. App. 660, 255 S.E.2d 124 (1979) (decided under former Code Section11-3-410).
Acceptance of check by means of telephone conversation cannot be effective because law requires that acceptance be in writing. Georgia Bank & Trust Co. v. Hadarits, 111 Ga. App. 195, 141 S.E.2d 172 (decided under former Code 1933, § 14-1101), 221 Ga. 125, 143 S.E.2d 627 (1965), rev'd on other grounds.
Place and form of drawee's signature of acceptance.
- Official comments to § 3-410 of the Uniform Commercial Code (this section) include statement that "[c]ustomarily the signature is written vertically across the face of the instrument; but since the drawee has no reason to sign for any other purpose his signature in any other place, even on the back of the instrument, is sufficient." Roswell Bank v. Atlanta Util. Works, Inc., 149 Ga. App. 660, 255 S.E.2d 124 (1979) (decided under former Code Section11-3-410).
A petition must allege written acceptance of draft to set forth a cause of action based upon acceptance. Bank of Augusta v. Westinghouse Elec. Corp., 110 Ga. App. 231, 138 S.E.2d 191 (1964) (decided under former Code 1933, § 14-1101).
Certified Clerks
Act of having check certified constitutes acceptance of payment under terms specified on check. Kersh v. Manis Whsle. Co., 135 Ga. App. 943, 219 S.E.2d 604 (1975) (decided under former Code Section11-3-411).
Payee bound by check's notations.
- In obtaining certification of check, payee accepts and is bound by notations already on it, such as that payee releases claims against drawer and another person. Kersh v. Manis Whsle. Co., 135 Ga. App. 943, 219 S.E.2d 604 (1975) (decided under former Code Section11-3-411).
Bank draft does not operate as assignment of funds, as does certified check, or cashier's check, or bank money order, which are considered to be notes carrying unconditional promises to pay. Fulton Nat'l Bank v. Delco Corp., 128 Ga. App. 16, 195 S.E.2d 455 (1973).
Release of drawer upon certification.
- Where a check, at instance of payee, is certified by bank upon which it is drawn, the bank becomes solely responsible, and the drawer is discharged from liability. McIntire v. Raskin, 42 Ga. App. 303, 155 S.E. 799 (1930), rev'd on other grounds, 173 Ga. 746, 161 S.E. 363 (1931) (decided under former Code 1933, § 14-1706).
If check is certified at instance of payee, bank then becomes absolute debtor of holder, drawers are released, and check is regarded as paid as between the drawers and holder. Since such certification operates as immediate payment from funds of drawer, it deprives payee of right to order payment stopped. Kersh v. Manis Whsle. Co., 135 Ga. App. 943, 219 S.E.2d 604 (1975) (decided under former Code Section11-3-411).
Drawer procuring certification prior to delivery.
- Where the drawer, before delivery of the check, personally procures the certification of the check by the bank upon which it is drawn; prior to its delivery, the relations, duties, and obligations between the drawer and the payee remain the same, but after its delivery, the bank becomes primarily liable, while the liability of the drawer becomes secondary. McIntire v. Raskin, 42 Ga. App. 303, 155 S.E. 799 (1930), rev'd on other grounds, 173 Ga. 746, 161 S.E. 363 (1931) (decided under former Code 1933, § 14-1706).
Certification of check for lump-sum alimony payment.
- Certification of check for lump-sum alimony payment by bank at instance of wife amounted to payment of check as to all parties except her and the bank and resulted in settlement of judgment for alimony, and having accepted amount awarded, she was estopped, while retaining it, from further prosecuting her petition to set aside decree of divorce as contained in same judgment. Thompson v. Thompson, 203 Ga. 128, 45 S.E.2d 632 (1947) (decided under former Code 1933, §§ 14-1705 and 14-1706).
Where there was judgment pursuant to alimony agreement which sum husband paid to wife's attorney, and attorney then delivered to her his own check in settlement and that check at her instance was certified by a bank, certification amounted to payment of check as to all parties except her and the bank, and resulted in settlement of judgment for alimony. Kersh v. Manis Whsle. Co., 135 Ga. App. 943, 219 S.E.2d 604 (1975) (decided under former Code Section11-3-411).
Certification Without Endorsement
Drawer released by certification without endorsement.
- Where payee certifies check and receives payment, drawer is released even though release on check provided for both "acceptance and endorsement" and payee failed to sign or endorse check. Kersh v. Manis Whsle. Co., 135 Ga. App. 943, 219 S.E.2d 604 (1975) (decided under former Code Section11-3-411).
RESEARCH REFERENCES
Am. Jur. 2d.
- 10 Am. Jur. 2d, Banks and Financial Institutions, §§ 577, 588, 590, 591, 600, 602, 643. 11 Am. Jur. 2d, Bills and Notes, §§ 212, 381 et seq. 12 Am. Jur. 2d, Bills and Notes, §§ 456, 457, 671. 50 Am. Jur. 2d, Letters of Credit, and Credit Cards, § 3. 60 Am. Jur. 2d, Payment, § 64. 72 Am. Jur. 2d, Statute of Frauds, § 154.
C.J.S.- 3A C.J.S., Alteration of Instruments, § 62 et seq. 10 C.J.S., Bills and Notes, §§ 37, 160, 231, 242.
U.L.A.- Uniform Commercial Code (U.L.A.) § 3-409.
ALR.
- Effect of certification of check upon presentment by one other than the owner or drawer, 12 A.L.R. 992.
Acceptance of renewal note made or endorsed by personal representative of obligor in original paper as payment or novation of that paper, 12 A.L.R. 1546.
Rights and liabilities of bank with respect to certified check or draft fraudulently altered, 22 A.L.R. 1157.
What amounts to acceptance extrinsic to check, 26 A.L.R. 312.
Effect of notice to drawee bank of claim of lien on check payable to another, 42 A.L.R. 625.
Delay in presenting certified or accepted check for payment as affecting liability of drawee bank, 42 A.L.R. 1138.
Drawee's mere writing of his name on bill as an acceptance thereof, 48 A.L.R. 760.
Check on bank as payment of debts held by bank for collection, 65 A.L.R. 1151.
Bank deposit for purpose of meeting certain checks or classes of checks, 86 A.L.R. 375.
Meaning of term "accepted" as used in that provision of the Uniform Negotiable Instruments Act ( § 115, subd. 3) which dispenses with notice of dishonor to indorser where instrument was made or accepted for his accommodation, 90 A.L.R. 218; 129 A.L.R. 426.
Lost or stolen travelers' checks, 110 A.L.R. 976.
Drawee bank's certification of check as an admission of genuineness of drawer's signature, 110 A.L.R. 1109.
Avoidance of bank's check certification secured by fraud, 100 A.L.R.2d 1197.
Provision in draft or note directing payment "on acceptance" as affecting negotiability, 19 A.L.R.4th 1268.