SECTION
229.37—Variation by Agreement
A. This section is
similar to UCC 4-103, and permits consistent treatment of agreements
varying Article 4 or subpart C, given the substantial interrelationship
of the two documents. To achieve consistency, the official comment
to UCC 4-103(a) (which in turn follows UCC 1-201(3)) should be followed
in construing this section. For example, as stated in Official Comment
2 to UCC 4-103, owners of items and other interested parties are not
affected by agreements under this section unless they are parties
to the agreement or are bound by adoption, ratification, estoppel,
or the like. In particular, agreements varying this subpart that delay
the return of a check beyond the times required by this subpart may
result in liability under section 229.38 to entities not party to
the agreement.
B. The Board has not followed UCC 4-103(b), which permits
Federal Reserve regulations and operating letters, clearinghouse rules,
and the like to apply to parties that have not specifically assented.
Nevertheless, this section does not affect the status of such agreements
under the UCC.
C. The following are examples of situations where variation
by agreement is permissible, subject to the limitations of this section:
1.
A
depositary bank may authorize another bank to apply the other bank’s
indorsement to a check as the depositary bank. (See section
229.35(d)).
2.
A depositary bank may authorize returning banks to commingle paper
qualified returned checks with paper forward collection checks. (See section 229.33(c)).
3.
A
depositary bank may limit its liability to its customer in connection
with the late return of a deposited check where the lateness is caused
by markings on the check by the depositary bank’s customer or prior
indorser in the area of the depositary bank indorsement. (See section 229.38(d)).
4.
A
paying bank may require its customer to assume the paying bank’s liability
for delayed or missent checks where the delay or missending is caused
by markings placed on the check by the paying bank’s customer that
obscured a properly placed indorsement of the depositary bank. (See section 229.38(d)).
5.
A
collecting bank or paying bank may agree to accept forward collection
checks without the indorsement of a prior intermediary collecting
bank. (See section 229.35(a)).
6.
A
bank may agree to accept returned checks without the indorsement of
a prior bank. (See section 229.35(a)).
7.
A
presenting bank may agree with a paying bank to present paper checks
for same-day settlement by a deadline earlier or later than 8 a.m.
(See section 229.36(d)(1)(ii)).
8.
A presenting bank and a paying bank may agree that presentment takes
place when the paying bank receives an electronic transmission of
information describing the check rather than upon delivery of the
physical check. (See section 229.36(b)).
9.
A depositary bank may agree with a paying bank or returning bank
to accept an image or other notice in lieu of a returned check even
when the check is available for return under this part. Except to
the extent that other parties interested in the check assent to or
are bound by the variation of the notice-in-lieu provisions of this
part, a depositary bank entering into such an agreement may be responsible
under this part or other applicable law to other interested parties
for any losses caused by the acceptance of an image or notice in lieu
of a returned check. (See sections 229.31(f) and 229.38(a)).
D. The Board expects to review the types of variation
by agreement that develop under this section and will consider whether
it is necessary to limit certain variations.
