Check books are replaced

Decision date

22.12.1964

Check Act 1955 Art1 Z6;

Check Act 1955 Art11;

Bill of Exchange Act 1955 Art8;

Possibility of subsequent approval of the signing of the check by the person represented.

If the check deed itself clearly identifies the name of the account from which payment is to be made, then the account holder with whose subsequent approval the check was signed cannot reject his check-based liability.

Decision of December 22, 1964, 4 Ob 582/64. I. Instance:

Salzburg Regional Court; Second instance: Linz Higher Regional Court.

The plaintiff, as the owner of a check made out to the defendant's account at S. Sparkasse, Zweiganstalt O., requested the issuance of a check payment order, with which the defendant requested the payment of the check sum of 8,000 S including 6% interest since November 13, 1963 , 1/3% check commission, as well as S 98.40 in protest fees and S 29 in return fees. The check payment order was issued. In the objections raised in good time, the defendant submitted that it had neither written nor signed the check in question. At the time the check was signed, only the two managing directors Gertrud and Rudolf B. were authorized to issue the check.

The first court upheld the check payment order with the exception of the request for payment of ATS 98.40 in protest fees. It was based on the following facts: Dkfm. According to the extract from the commercial register, O. was the managing director of the defendant from June 29, 1960 to September 26, 1963. The last notification in the Wiener Zeitung of the cancellation of his management authority was given on October 19, 1963. On September 4, 1963, Dkfm. O. flown to Brazil on behalf of the defendant. There he received a telegram from the company partners Gertrud and Rudolf B. on September 27, 1963 with the notification that he had been dismissed as managing director of S.-Metall by a shareholder resolution from September 25, 1963, and that business deals and payments were only possible with the written consent of the new company Managing directors Gertrud and Rudolf B. possible, his power of attorney has expired, the check for $ 13,500 (not the subject of the action) is blocked. At the same time, the immediate return of the checkbooks was requested and personal liability was threatened in the event of a violation. O. immediately asked for a written confirmation of this telegram, because he could not believe the recall given the business trip that had been prepared for a long time and the business dealings that had already been made, as well as the known fact that the two managing directors had repeatedly disagreed. The defendant's letter of confirmation dated October 21, 1963 was received by O. on October 31, 1963. In the meantime, on October 28, 1963, in order to be able to cover his travel expenses, he had made out the check for 8,000 S in the name of the person carrying it and made it into cash by passing it on to a business friend. After receiving the above-mentioned letter of confirmation, O. returned to Europe and got in touch with the two partners, who now explained to him that the whole thing had been a mistake or a short-circuit act. They handed him a power of attorney dated November 25, 1963 with the following content: "We hereby confirm Mr. Hans Rudolf O. that we, as managing director and main shareholder, will reappoint him as managing director in the course of the next few days by means of a shareholder resolution Commercial register entry, this power of attorney applies to represent our company ". Since the beginning of 1964, O. has continued to work for the company on a commission basis at the request of the B. spouses. Because of the failure to recognize his commission claims, O. subsequently brought an action against the defendant at the Salzburg Labor Court, which in turn brought an action against O., with which she particularly sought the surrender of the checkbook in his custody. These legal disputes are still pending at the Salzburg Labor Court.

The first court proceeded from the legal opinion that O. could consider himself entitled to write a check before receiving the confirmation letter, since he could put well-founded doubts about the authenticity and correctness of the telegram. The actual lack of power of representation was subsequently remedied by the power of attorney of November 25, 1963, whereby the failure to request the checkbook was to be seen as a special external sign of his re-entrustment with the company power of representation.

The request for the acceptance of protest fees had to be rejected because the check was presented in good time, but the protest was only made after the deadline for presentation.

While the dismissing part of this judgment remained unchallenged, the defendant appealed against the accepting part, which the appellate court followed; it changed the first judgment in the sense of the cancellation of the entire bill payment order.

The court of appeal proceeded from the factual findings of the first court. Indeed, it expressed the legal opinion right from the first court that the behavior of the defendant towards O. after his return from the business trip must be regarded as tacit approval of the issuance of the check, and that as a result the possible lack of authorization at the time of the issuance of the Checks had subsequently been healed with retroactive effect, but nevertheless canceled the check payment order on the grounds that the defendant did not have a check-law obligation from the check document presented. The present check is only with the name "O." signed, without any indication that it was a representative or agent of the defendant. The fact that the holder of the drawn account is the defendant cannot be inferred from the check paper either; this fact could therefore not be ascertained from the contents of the check, but only through an inquiry to the drawn bank. An obligation of the defendant under check law could therefore not be inferred from the check.

The Supreme Court restored the first-judicial ruling.

For the reasons of the decision:

Contrary to the opinion of the defendant, the lower courts must initially agree that the lack of power of representation that actually existed at the time the check was signed by the former managing director O. is to be regarded as remedied by the subsequent behavior of the two current managing directors determined by the lower courts. Doctrine and jurisprudence unanimously take the position that if the signature is subsequently approved, it can no longer be said that there is no power of representation and that therefore the creditor of the bill of exchange (check) is due to this subsequent approval of the signature by the representative who was not authorized at the time according to Art. 8 WG., Art. 11 ScheckG. loses a provisionally acquired claim against the latter (Jakobi, Wechsel- und Scheckrecht, p. 244; Stranz, Wechselgesetz [14], p. 72; Stanzl, Wechsel-, Scheck- und other Wertpapierrecht, p. 43 f., SZ. XXIX 42). The subsequent approval, which is not tied to any form, can also be granted tacitly and in this case works back to the signing of the document (Staub - Stranz, Komm. Zum Wechselgesetz [13], p. 133 f). Do the managing directors of the defendant now have the Dkfm. O. explains that the "whole thing" was a mistake or a short-circuit act, they were ready to appoint him again as managing director, they also issued him a power of attorney in which the last-mentioned promise is clearly expressed, and this is that If you do not repeat requests for the return of the checkbook that were previously expressed by telegram, then this behavior justifies the acceptance of a tacit approval of the acceptance of a check obligation on your behalf. It can therefore be assumed that the signing of the check carried out by O. on October 28, 1963, made it possible for the defendant to be bound by a check.

The plaintiff contests the legal opinion of the appellate court that a check-like obligation of the defendant could not have occurred because her name did not appear on the check itself, with the reference to the fact that the check had the account number of the defendant, i.e. the issuer, and therefore her identification was possible without any difficulties by inquiring at the Sparkasse concerned.

This objection must be justified. With reference to the provision of § 1 ScheckG., According to which the check must contain the signature of the issuer, nothing is gained for the defendant. The signature of the authorized representative of the exhibitor replaces the exhibitor's own signature. Since the check is always - unlike a bill of exchange - an instruction to pay from a specific account of the issuer, the check itself, if the latter bears the correct account number of the account holder, can also provide the third party with information about the identity of the There is no doubt about the account holder; In the present case, there was no such thing for the plaintiff, otherwise it would not have been able to bring its action against the owner of the account indicated on the check. If the check document itself therefore clearly identifies the name of the account from which payment is to be made, then the account holder whose claim was made, with whose subsequent approval the check was signed, cannot reject his check-like liability.