The Legislation and Interpretation Role of Formalism in Negotiable Instrument

Document Type : Research Paper

Authors

1 Imam Khomeini International University

2 Imam Khomeini International Univercity

10.22099/jls.2021.39413.4227

Abstract

The formalism in negotiable instrument means giving originality to the form of a document that limits an individual's will. This formalism is different from interpretive formalism. The question under consideration in this study is what role does formalism play in commercial documents in the legislative and interpretive stages?
The question was answered by emphasizing the principles and rules governing commercial instruments in an "analytical" method. It was concluded that as a legislator, formalism is the main legislative basis in commercial instruments; because principles such as the independence of signatures and the invalidity of objections cannot be achieved except with the originality of the form.
As a form of legislation, formalism is the main basis of the legislature in negotiable instrument. The legislature wants to create speed and certainty in negotiable instrument through formalism and make the resulting claims predictable so that they are a viable alternative to money. The following rules state the goals of formalism: "Request for security", "check Issuance of execution",” Check as enforceable document ", principles governing commercial documents, etc., all of which can be justified on the basis of formalism resulting from commercial documents.
In the position of interpretation, the interpreter must also interpret according to the legislative formalism.

Keywords

References

Gennaioli, Nicola and Andrei Shleifer (2008) “Judicial Fact Discretion”, Journal of Legal Studies, Vol. 37, No 1, pp.1-35.

Gilmore, Grante (2007) Security Interests in Personal Property, Fifth Printed, Canada, The Lawbook Exchange.

Gilmore, Grante (1979) “Formalism and the Law of Negotiable Instrument”, Creighton Law Review, Vol.13, No 1, pp.441-461.
Posner, Richard (2011) Economic Analyses of Law, eighteen editions, New York, Aspen Publishers.
Winrib, Ernest (1995) The Idea of Private Law, Harvard University Press, Cambridge
Journal of Legal Studies
Volume 13, Issue 4 - Serial Number 42
December 2021
Pages 97-123

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