Promissory notes are often used to guarantee the performance of obligations undertaken in commercial relationships. The legal framework governing the specific legal regime of the promissory note is represented by the Law No 58/1934 on bills of exchange and promissory notes. Although there is no express definition of promissory note in the above-mentioned normative act, the only mention being found in the provisions of Article 105 of Law No 58/1934, namely that of “security”, the literature defines it as a payment instrument by means of which a party, called the issuer/debtor, undertakes to pay on maturity a sum of money to another party, called the beneficiary/creditor.
According to Article 104 of Law No 58/1934, the promissory note must include:
1. The name of the promissory note expressed in Romanian;
2. The unconditional promise to pay a certain amount;
3. Date of maturity;
4. Place of payment;
5. Name/name of the person to whom or to whose order payment is to be made;
6. Date and place of issue;
7. Signature of the issuer, i.e. holographic signature of the natural person acting as issuer or, where applicable, of the legal representative or authorised representative of the issuer, natural person, legal person or entity using such instruments;
8. The name of the issuer, i.e. the full name, in plain language, of the natural person or the name of the legal person or entity obliging. If the name of the issuer exceeds the space allotted on the note, the first characters of the first name and surname, respectively of the name of the issuer, shall be written on the promissory note, within the limit of the space specially allotted, without thereby rendering the promissory note void;
9. The issuer code, i.e. a unique identification number taken from the identification or registration documents of the issuer.
An important note must be made in relation to the absence of one or more of the above-mentioned notes. Thus, a security which lacks any of the conditions listed, except the place of payment, the place of issue and the date of maturity, does not have the value of a promissory note.
The practical usefulness of the promissory note is that it is delivered to the creditor at the time of the conclusion of the legal relationship on the basis of and to guarantee which it was issued. Thus, if, during the course of the legal relationship between the parties, the debtor does not perform on time the obligation(s) to which he/she has consented, the creditor has the possibility to present the promissory note to the debtor’s bank and demand payment.
In the event that, following the presentation of the promissory note for payment, payment cannot be made by the bank for reasons related to the debtor’s insolvency, the creditor has the possibility to invest a bailiff with a request for enforcement by which to request recovery from the debtor of the amount contained in the promissory note that has fallen due.
After the registration of the request for enforcement and the opening of the enforcement file, the request for enforcement is sent to the court in order to allow enforcement, and then, if the request for enforcement is admitted, the debtor is summoned.
In view of the specific nature of the enforcement title in question, the executor will issue two summonses to the debtor, namely a bill of exchange summons, by means of which the debtor is made aware of the promissory note and is put in default and, subsequently, a common law summons, by means of which the debtor is requested to pay the amount mentioned in the promissory note and which represents the first act of enforcement itself.
As regards the debtor’s means of defence, he may defend himself against the demand for enforcement of the promissory note by means of an opposition to the bill of exchange and a common law challenge to enforcement, and by means of each of them he may invoke specific means of defence.