Introduction
In 2022, 12 532 new legal acts were published in Poland, [1] which corresponds to 32 000 pages of a new law[2]. The scope of regulation, [3] or in fact - overregulation - increases year by year, taking the form of legislative inflation. However, this does not concern the Bills of Exchange and Promissory Notes Law which has been in force in almost unchanged form since 1936. Is it possible that the law from almost a century ago is still relevant to this day?
A brief history of a bill of exchange
A bill of exchange is a security constituting an obligation on the part of an issuer, or a person appointed by the issuer, to pay a specific amount of money indicated in the document at a designated place and time. We can distinguish the following: a draft, where an issuer (a drawer) orders a drawee to pay a specified amount of money for the benefit of a payee[4], and a promissory note, where an issuer undertakes themselves to pay the amount indicated therein. Consequently, the first one constitutes an order, while the second one is a promise to pay . Issuing, accepting or endorsing a bill of exchange is used to secure the performance of the obligation in a relatively simple and cost-free manner - issuing a bill of exchange is free of charge, which gives it an advantage over a pledge or mortgage. The abstract nature of liabilities resulting from a bill, their accessibility and functionality made bills of exchange one of the most universal instruments of economic circulation since the 13th century.
The Bills of Exchange and Promissory Notes Law has been in force in Poland since 1936 and is based on the Geneva Convention , an international agreement adopted in the same year. The solutions applied there, which have been considered once as model solutions and ensured cross-border interoperability, now lost their relevance. The fundamental reason for the incompatibility of a bill with today's technological realities is its material form, which, on one hand, does not meet the requirement of the speed and manner of electronic data exchange, but on the other hand, however, carries the risk of abuse due to common availability of technologies that forge signatures in a way that is practically indistinguishable from a handwritten signature . Finally, a traditional form of a bill of exchange makes it unfit for use in innovative solutions based on the blockchain technologies . Therefore, solutions are being sought that would enable remote trading in bills of exchange - without physical presence of the parties - with its simultaneous dematerialisation, while fulfilling the same functions: securing receivables and payments. However, these solutions do not have to mean total elimination of paper form of a bill of exchange; in fact, it is possible to extend its current form with an electronic record, including a digital reproduction of the institution of holding this security. This would undoubtedly enable faster, and therefore more efficient, but also safer trade in bills of exchange.
Legal aspects of the electronic bill of exchange based on the current provisions
The question arises as to whether Polish law is “prepared” for any possible implementation of the electronic bill of exchange and more specifically, whether there is a legal basis for this move. It would seem that this basis could be the aforementioned Act of 1936 - Bills of Exchange and Promissory Notes Law, which uses the notion of a “document” in Article 101. On the other hand, the application of the general provisions of the Polish Civil Code , in particular the relatively new article 773 of the Polish Civil Code on the grounds of the Bills of Exchange and Promissory Notes Law, makes it reasonable to claim that the acceptable form of a bill of exchange could also be an electronic form. The above is confirmed by the principle of signature equivalence introduced to the Polish Civil Code by the so-called eIDAS Regulation : pursuant to article 781 § 2 of the Polish Civil Code, a declaration of intent made in electronic form is equivalent to a declaration of intent made in writing. Therefore, since the Bills of Exchange and Promissory Notes Law requires (in article 1 item 8, article 13, article 101 item 6) the issuer or endorser to sign the bill of exchange, by default with their own handwritten signature, although in light of the cited regulation nothing prevents them from using a qualified electronic signature .
Doubts as to the adequacy of the current act to the requirements of the electronic bill of exchange are explicitly raised by the provisions referring to its tangible (paper) form: numerous references to the face of the bill (articles 25 section 1, article 31 section 3) or the back side of the bill (article 88 section 2). However, it seems that a distinction between the face and the back side of the bill of exchange would also be possible in the case of electronic bill of exchange (e-bill), for example by distinguishing properly named parts in the electronic record, which together constitute an integrated whole . A similar solution could be applied to the institution of issuing a bill of exchange, a sine qua non condition of effective transfer of the rights resulting therefrom: disposing of the e-bill and transferring it to specific recipients would be possible by way of introduction of the relevant entries into the electronic document.
E-bill of exchange - so what precisely?
It seems that it is precisely the ease of disposal (discounting) of the e-bill, not requiring its physical issuance, that would be the greatest advantage of the electronic security. Replacing paper bills of exchange with intangible form would make trading faster and more efficient and, more importantly, would meet the expectations of its participants. The electronic bill of exchange would meet all requirements of a traditional bill of exchange, as specified in article 101 of the Bills of Exchange and Promissory Notes Law with its own peculiar differences: it would take the form of an .xml file, which would include the following phrase: “I will pay for this promissory note”, (in Polish: “zapłacę za ten weksel własny”): which would fulfil the requirement of an unconditional promise to pay. Further, the e-bill would specify the amount of money, its due date, the name of a payee and the date and place of issue relevant to the location of the issuer. Providing the electronic bill of exchange for payment would be done by making the full content of the bill of exchange, together with the key with which the bill would be encrypted, available to the parties liable. The issuer would sign the bill of exchange with their qualified electronic signature, which would provide a high degree of certainty in terms of identity of the issuer. Disposal of the e-bill would take place by endorsement, by adding a relevant clause to the bill of exchange, freely chosen by the endorser and also signed by them with an electronic signature . Performance of the above assumptions would take place in a blockchain system, ensuring the permanence and durability of the information recorded in the e-bill.
Summary
The above-described considerations shall constitute - with all their innovation - only a demand and a forecasted direction of changes in the Bills of Exchange Law, which, still, have not taken place. From the economic point of view, it is desirable to make efforts in order to amend the Geneva Convention and to implement solutions ensuring legal effectiveness of the electronic bill of exchange.
Apl. Dorota Frankowska
[1]https://www.prawo.pl/prawnicy-sady/rekord-w-tworzeniu-prawa-w-2022-r-raport-poprawmy-prawo,519692.html, dostęp: 30.06.2023, godz.12.40
[2]https://www.money.pl/gospodarka/prawo-w-2022-r-powstalo-w-polsce-32-tys-stron-nowego-prawa-samo-czytanie-zajeloby-2-godziny-dziennie-6879531576838976a.html, dostęp: 30.06.2023, godz.13.25
[3] Ustawa z dnia 28 kwietnia 1936 r. Prawo wekslowe (t.j. Dz. U. z 2022 r. poz. 282) – dalej: „Prawo wekslowe”.
[4] J. Jastrzębski [w:] M. Kaliński, J. Jastrzębski, Komentarz do ustawy – Prawo wekslowe [w:] Prawo wekslowe i czekowe. Komentarz, wyd. III, Warszawa 2014, art. 1.
[5] I. Heropolitańska, Rozdział 1 POJĘCIE WEKSLA, JEGO FUNKCJE I CECHY CHARAKTERYSTYCZNE [w:] Weksel w obrocie gospodarczym, Warszawa 2015.
[6] P. Machnikowski, 4. Weksel trasowany i własny [w:] Prawo wekslowe, Warszawa 2009.
[7] Konwencja w sprawie jednolitej ustawy o wekslach trasowanych i własnych (Dz. U. z 1937 r. Nr 26, poz. 175) – dalej: „Konwencja genewska”.
[8] Ministerstwo Cyfryzacji, Grupa robocza ds. rejestrów rozproszonych i blockchain, Weksle elektroniczne w technologii blockchain na podstawie regulacji implementującej Ustawę Modelową UNICITRAL o zbywalnych dokumentach elektronicznych, listopad 2019, str. 2.
[9] Tamże.
[10] Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (t.j. Dz. U. z 2022 r. poz. 1360 z późn. zm.) – dalej: „k.c.”.
[11] Mowa o art. 25 ust. 2 Rozporządzenie Parlamentu Europejskiego i Rady (UE) nr 910/2014 z dnia 23 lipca 2014 r. w sprawie identyfikacji elektronicznej i usług zaufania w odniesieniu do transakcji elektronicznych na rynku wewnętrznym oraz uchylające dyrektywę 1999/93/WE (Dz. U. UE. L. z 2014 r. Nr 257, str. 73) – dalej: „Rozporządzenie eIDAS”.
[12] Zob. Ministerstwo Cyfryzacji, Grupa robocza ds. rejestrów rozproszonych i blockchain, Weksle elektroniczne w technologii blockchain na podstawie regulacji implementującej Ustawę Modelową UNICITRAL o zbywalnych dokumentach elektronicznych, listopad 2019, str. 10.
[13] Tamże, str. 11.
[14] Tamże, str. 14-20.
