The Legal Basis for the Claim of the Bearer’s Recourse to the Withdrawn Bank in Accordance with the Provisions of the Jordanian Commercial Law
Dr. Jabr Ghazi Shatnawi
Commercial Law Teacher – Faculty of Law – Yarmouk University – Jordan
This study deals with the issue of the legal basis for the claim of the check bearer’s return to the withdrawn bank in accordance with the provisions of the Jordanian Trade Law, as the Jordanian legislator has organized this case in the first paragraph of Article (271) of the Trade Law No. 12 of 1966, but this regulation raises the question about the nature of this lawsuit, is it a cashing lawsuit stemming from the cashing obligation of the drawee towards the holder? Or is it a normal claim that stems from the obligation according to the general rules? What is the legal basis that can be said in both cases?
In order to answer the above questions, the descriptive analytical approach was adopted in studying the legislative provisions in the Jordanian Trade Law, jurisprudential opinions and judicial rulings, without neglecting the comparison with other commercial legislations to the extent that serves the study, and clarifies its content and objectives. The study was divided into two main sections: the first section deals with the possibility of establishing this claim on the check holder’s possession of the consideration for payment with the bank, while the second topic deals with the possibility of establishing the claim on the bank’s signature on the check.
The study concluded that in light of the current provisions regulating the check in the Jordanian Trade Law, we do not find a legal basis for this lawsuit, which was organized by the legislator in Article (271) of the Trade Law, where it became clear to us that this lawsuit is a morphological lawsuit, and there is no cashing obligation for the bank towards the check bearer in accordance with the provisions of the Jordanian Trade Law, as it turns out that the claim of the holder for ownership in return for fulfillment is based on the general rules, not the rules of the exchange law. Therefore, one of the most important recommendations of this study was the necessity of organizing the certified (certified) check by the Jordanian legislator; This lawsuit will have a legal basis on which to base it, so that the bank has a signature on the check that justifies its cashing commitment towards the carrier. The study also recommended the necessity of stipulating that the provisions of the bill of exchange be considered the general Sharia for every issue for which there is no special provision in the articles governing the check, and that the referral should not be limited to specific articles.
Keywords: the bank, the exchange return, the consideration for fulfillment, the marking of the check, the certified check.