28 T H E CUB A R E V I E W 



Cuban Practicein Gheckson an Insolvent Bank 



Dr. Santiago Gutierrez de Celis, counsel of the Chamber of Commerce, Industry, 

 and Navigation of the Island of Cuba, has submitted to that institution a lucid legal 

 opinion with regard to the Cuban practice in the matter of checks drawn on a bank 

 which subsequently suspends payment. The opinion of Doctor Gutierrez is quoted below 

 in translation: 



In connection with two remittances of money made by the company requesting this 

 opinion to New York and to Berlin, through a bank which recently was declared to 

 have suspended payment, a desire is expressed to know what responsibility there is 

 and who should pay the drafts, inasmuch as the checks of the bank which had collapsed 

 could not be collected abroad. As has been indicated, the cases submitted for study 

 are two in number: 



1. On April 22 the company requesting this opinion purchased in the bank sub- 

 sequently declared to have suspended payment a draft or banker's check on a bank 

 in New York to the order of a merchant "residing a few miles from New York." On 

 April 28 the manufacturer in question acknowledged receipt, and at the beginning of 

 May he sent word that the document had not been paid, probably because of the 

 suspension of the payments of the drawing bank. "In view of the fact," states the 

 company requesting this opinion, "that the manufacturer still had one or more days' 

 time to cash the draft, and in view of the date of suspension of payments in New York 

 * * * we would be glad to learn the extent to which we can be made responsible 

 for the failure to pay the draft in question." 



2. The other case is as follows: "On April 2 the company requesting this opinion 

 closed a deal with a merchant in Habana who gave in payment for the merchandise 

 a draft on Berlin for 100,000 marks, payable to his order on a Berlin bank and duly 

 indorsed to the company requesting this opinion. "The draft," states the request for 

 an opinion, "was duly transmitted to our office in Germany for the purpose of collection 

 and deposit of the proceeds in the funds of the company there. Up to today we have 

 had no word, for there has not been time to have received the same; but in the event 

 that this draft shall not have been paid, can we demand and require the merchant 

 who gave it to us in payment to make good its value?" 



Diligence a Factor 



Although both questions are of like nature, I proceed to consider them separately 

 for greater clearness. 



1. With respect to the fulfillment of obligations through negotiable instruments, 

 the fundamental principle of our positive law is formulated in article 1170 of the Civil 

 Code, according to which "the payment of money debts shall be made in the kind 

 of money stipulated, and if it is not possible to make payment in specie, then it shall 

 be made in the gold or silver money having legal tender value in Cuba. The delivery 

 of promissory notes payable to order or bills of exchange or other commercial documents 

 shall merely have the effect of payment when they shall have been realized, or when, 

 through the fault of the creditor, their value shall have been impaired. Meanwhile, 

 action based on the original obligation shall remain suspended." 



If, consequently, the document with which the payment was made has not been 

 realized, the obligation has not been paid in accordance with the foregoing precept. 

 Nevertheless, a different conclusion would be reached if it could be proved that the 

 drawing bank had funds in the bank on which the check is drawn, and also that the 

 holder of the check could have collected it had he acted diligently, inasmuch as he 

 received it in due time. This difference of conclusion is based upon the agreement of 

 article 1170 of the Civil Code with article 1902 of the same code, inasmuch as the 

 results of negligence or carelessness must fall upon the negligent person himself. The 

 conclusions of this opinion would vary according as the following circumstances exist: 



