THE C U B A REVIEW 



29 



(a) The fact that the drawer of the document had previously provided funds. 

 {b) The fact that the holder of the document had been diligent and had had time 

 to collect it by presenting it at the counter of the bank on which it was drawn. 



Worthless Check Not Payment 



It is clear that if the company requesting this opinion remitted a draft of a bank 

 which had not made provision of funds — that is to say, if it had remitted paper having 

 no value — there was in fact and truth no payment and the obligation continues. But 

 if there was provision of funds in the power of the bank on which it was drawn, and 

 if the holder of the document was not diligent in presenting it duly for payment, thus 

 giving rise to the disappearance of the funds provided, it is unquestionable that this 

 negligence should not prejudice those asking this opinion who are not responsible for 

 the negligence but rather who produce its effects on the creditor or holder of the 

 document who must pay the consequences of his own carelessness. The determination 

 of negligence in such a case is a question of fact which must be proven and is governed 

 by the provisions of law in force in the country where the document in question should 

 be presented for payment. Article 473 of the Commercial Code provides that all 

 bills of exchange "drawn in Cuban territory on foreign countries shall be presented in 

 accordance with the law in force in the place in which they should be paid." The law 

 of the United States — that is to say, the Negotiable Instruments Act^provides in section 

 186 that a check must be presented for payment within a reasonable time after its 

 issue or the drawer will be discharged from liability thereon and the extent of the 

 loss caused by the delay, and in section 193 it is stated that in determining whether 

 the time for presentation has or has not been reasonable, regard is to be had to the 

 nature of the instrument, the usage of trade or business, and the facts of the particular 

 case. These principles may be applied by analogy to the case submitted for opinion 

 in order to ascertain whether the holder of the document was or was not diligent in 

 presenting it, having the effect of exonerating from responsibility the company sub- 

 mitting this question for opinion. In case collection could not be made on the instrument 

 in spite of diligence, the company will be responsible; in case there was provision of 

 funds but no collection took place on the document because of the negligence of the 

 holder, the company will not be responsible. 



2. The foregoing is in part applicable to the second point submitted for opinion. 

 If the document turned over to the company requesting this opinion could not be realized 

 because there had never been provision of funds, there was in fact no payment of the 

 obligation, which continues to exist. It is, moreover, to be observed that in such 

 case the company requesting an opinion has also ground for action against the merchant 

 in this city who turned over to it the draft, by reason of the fact that the latter 

 indorsed this document and is responsible as an indorser in accordance with the pro- 

 visions of article 467 of the Commercial Code. 



Trade with Boston 



March, 

 1922 



Imports from Cuba $1,841,642 



Exports to Cuba $333,447 



April, 

 1922 



Imports from Cuba $895,484 



Exports to Cuba $453,577 



Mav, 

 1922 



Imports from Cuba $1,232,191 



Exports to Cuba $484,360 



