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Negotiation requires a valid endorsement of the negotiable instrument. The consideration constituted by a negotiable instrument is cognizable as the value given up to acquire it (benefit) and the consequent loss of value (detriment) to the prior holder; thus, no separate consideration is required to support an accompanying contract assignment.
The Twelfth Edition of Business Law: Text Cases (Clarkson, Miller & Cross), says that formal contracts are, "contracts that require a special form or method of creation to be enforceable." It uses negotiable instruments as an example of formal contracts, such as: checks, drafts, promissory notes, and certificates of deposit.
Negotiation often enables the transferee to become the party to the contract through a contract assignment (provided for explicitly or by operation of law) and to enforce the contract in the transferee-assignee’s own name. Negotiation can be effected by endorsement and delivery (order instruments), or by delivery alone (bearer instruments).
Where a contract or term is voidable, the party entitled to avoid may either conditionally or unconditionally choose to affirm the contract or term as outlined in Article 3.2.9 of the Principles which states that "if the party entitled to avoid the contract expressly or impliedly confirms the contract after the period of time for giving notice ...
A negotiable instrument is a type of contract that allows the transfer of money, such as a cheque. [32] With a cheque there are three parties: the person holding the bank account who gives the cheque (the drawer), the party the cheque is made out to (the payee), and the drawer's bank which promises to pay the money to the payee (the drawee). [33]
It has long seemed to me that there is an unfortunate gulf between the commercial lawyer and the property and equity lawyer. Contract, sale of goods and negotiable instruments are accepted as falling within the domain of the former, equitable interests and conflicting real rights within the latter's field of expertise.
In other cases, the contract may be a negotiable instrument in which the person receiving the instrument may become a holder in due course, which is similar to an assignee except that issues, such as lack of performance, by the assignor may not be a valid defense for the obligor. [9]
The traditional definition of a security, which includes shares, bonds and similar, is a "fungible, negotiable instrument", where "instrument" refers to its status as a legal document and "negotiable" means that the owner can transfer it with good title, even though it itself may have had defective title.