The Laws of Commerce and the Physical Aspect - The Objects of the Promissory Note
- The situation is different with respect to the nature of banknote trading, which includes an institution that holds properly. These aspects of the laws of bills view a shtar as a movable object, over which possession acquires ownership. In the words of the Supreme Court in Civil Appeal 8301/13 Tal Trading Corp. Bank Leumi Le-Israel in a Tax Appeal (published in the databases; November 24, 2015) (hereinafter: the Tal Trading Corp. case): "The contractual charge merges with the banknote itself. In this way, the debt becomes an 'object' of value, as opposed to an obligation that remains abstract" (ibid., paragraph 5). Moreover, in accordance with the laws of banknotes, the delivery of the note is done by physically transferring it to another.
Since the laws of commerce link the possession of the physical document to the ownership of the right written therein, the result is that while a written document can be physically held and delivered physically, a computer file does not constitute movables that can be held, but rather it is an intangible asset, and therefore cannot fulfill the element of offenses as determined in the laws of banknotes according to their accepted interpretation.
Therefore, even though the law recognizes that it is possible to fulfill the written requirement digitally and electronically, as detailed at length above, the nature of the offenses still requires, according to the accepted interpretation, the physical dimension of the note. This is the case in our approach, and this is the case with other legal systems based on the English Bills of Exchange Act of 1882 (see the World Trade Organization's position paper on this matter, paragraph 6). This objective aspect of the note goes down to the root of the law of the notes, and it is at the heart of the difficulty in recognizing the electronic signature of a note, which means recognition of an electronic note, which cannot be transferred or held physically.
- Despite the above, it is impossible to ignore the decline in the status of physical possession of movables, as well as the development of the modern economy, which has changed the market's use of banknotes (see Lerner 2007, p. 118; Shalom Lerner, "Banknotes in the Twenty-First Century," Levin 433, 434 (Asher Grunis, Eliezer Rivlin and Mikhail Kraini eds., 2013) (hereinafter: Lerner 2013)); Ruth Plato-Shinar, "Towards a Rational Model of Defenses in Banknote Law," The Law 12 Sefer Adi Azar z"l 251, 275 (2007) (hereinafter: Plato Shinar)).
- Other Municipal Applications 1560/90 Moshe Zitiat v. First International Bank of Israel Ltd., 48(4) 498 (1994)The inscription "to the beneficiary only" written on a check was discussed, and the court gave decisive weight to the intention of the drawer of the note over the nature of the transactions, and wrote as follows:
"On the contrary: in the modern era, the banknote is increasingly taking its place as a means of payment. Therefore, it is requested to provide the commercial and consumer community with an instrument that will fulfill these expectations, i.e., viewing the note in defined circumstances as a means of payment only... Nowadays, the idea of commerce as a super-idea in banknote law has declined. The note is usually used as a technical means of fulfilling a charge. An up-to-date legal system should go with the spirit of the times, and provide the public with the appropriate normative framework for realizing its commercial needs."