Printable Format84-3-414. Obligation of drawer. (a) This section does not apply to cashier's checks or other drafts drawn on the drawer.
(b) If an unaccepted draft is dishonored, the drawer is obliged to pay the draft (1) according to its terms at the time it was issued or, if not issued, at the time it first came into possession of a holder, or (2) if the drawer signed an incomplete instrument, according to its terms when completed, to the extent stated in K.S.A. 84-3-115 and 84-3-407. The obligation is owed to a person entitled to enforce the draft or to an endorser who paid the draft under K.S.A. 84-3-415.
(c) If a draft is accepted by a bank, the drawer is discharged, regardless of when or by whom acceptance was obtained.
(d) If a draft is accepted and the acceptor is not a bank, the obligation of the drawer to pay the draft if the draft is dishonored by the acceptor is the same as the obligation of an endorser under K.S.A. 84-3-415(a) and (c).
(e) If a draft states that it is drawn "without recourse" or otherwise disclaims liability of the drawer to pay the draft, the drawer is not liable under subsection (b) to pay the draft if the draft is not a check. A disclaimer of the liability stated in subsection (b) is not effective if the draft is a check.
(f) If (1) a check is not presented for payment or given to a depository bank for collection within 30 days after its date, (2) the drawee suspends payments after expiration of the 30-day period without paying the check, and (3) because of the suspension of payments, the drawer is deprived of funds maintained with the drawee to cover payment of the check, the drawer to the extent deprived of funds may discharge its obligation to pay the check by assigning to the person entitled to enforce the check the rights of the drawer against the drawee with respect to the funds.
History: L. 1991, ch. 296, § 51; February 1, 1992.
Revisor's Note:
Former section 84-3-414 was repealed by L. 1991, ch. 296, § 111 and the number reassigned to the current text.
KANSAS COMMENT, 1996
This section is identical to the 1995 Official Text except that the lower case roman numerals have been replaced by arabic numbers. Subsections (b) and (e) derived from the former 84-3-413(2) and other provisions are taken from the former 84-3-411, 84-3-501 and 84-3-502. Historical case and statutory references can be obtained from the 1965 and 1983 bound volume 7 of the Kansas Statutes Annotated.
Subsection (a). This section does not apply to drafts drawn on the drawee, including cashier's checks. Those obligations are discussed in 84-3-312 and its Official and Kansas Comment 1996.
Subsection (b). After the draft has been dishonored, the drawer is obligated to pay it, and is liable in the same manner as the maker of a note (see 84-3-412), and nonissuance, alteration or unauthorized completion of an incomplete instrument are personal defenses which may be partially or totally avoided by a holder in due course. The drawer of a draft is said to be secondarily liable because the drawer is not liable on the instrument until it is dishonored. Notice of dishonor is no longer necessary to charge a drawer after dishonor except in one circumstance. The drawer is entitled to receive notice on the dishonor of an accepted nonbank draft which has been dishonored. See 84-3-414(d). The holder may not sue the drawer under this section until the procedural preconditions of presentment and dishonor (unless excused, see 84-3-504) have been met. Until these conditions are satisfied, no one is directly liable on a bank check. Until presentment and dishonor the drawer is not liable on the draft, and the underlying obligation which the check was issued to satisfy remains suspended. See 84-3-310.
Subsection (c). Acceptance of a check by a bank (certification) discharges the drawer. The person procuring certification substitutes the bank's (acceptor's) liability for that of the drawer.
Subsection (d). Drafts are occasionally written by the seller of goods, the drawer, on the buyer, the drawee. The buyer then will accept the draft, and the obligation of the acceptor, by signing the draft. 84-3-309. If such a draft is then dishonored, the drawer is liable as an indorser, 84-3-415(a), and is entitled to notice of dishonor, which must be sent by banks within the midnight deadline (84-4-104(a)(10)), and must be given by others within 30 days (84-3-503(c), the same as an indorser). If such notice is not given, this drawer will be discharged.
Subsection (e). All drafts except checks may be drawn without recourse, which will preclude drawee liability on the instrument. It will also avoid transfer warranties (84-3-416(c)) and presentment warranties (84-3-417(c)), if the proper language is used. See 84-3-416 Official Comment # 5, and 84-3-417 Official Comment # 7. The effect of an without recourse draft is analogous to a quitclaim deed, it will transfer whatever rights the drawer has in the instrument with no recourse if there are any problems with the instrument. Without recourse language is not given any effect on checks.
Subsection (f). There is a rarely used possible discharge for delay in presenting a check. If the check is not deposited within 30 days, and if the drawee becomes insolvent ("suspends payments") thereafter, and if the drawer's account therefore loses the funds to cover the check, then, the drawer can satisfy the drawer's liability by assigning the claim against the bank to the one entitled to enforce the check.