CO Code § 4-3-409 (2021)
2021 Colorado Code|Title 4 - Uniform Commercial Code|Article 3 - Negotiable Instruments|Part 4 - Liability of Parties|§ 4-3-409. Acceptance of Draft; Certified Check

  “Acceptance” means the drawee's signed agreement to pay a draft as presented. It must be written on the draft and may consist of the drawee's signature alone. Acceptance may be made at any time and becomes effective when notification pursuant to instructions is given or the accepted draft is delivered for the purpose of giving rights on the acceptance to any person.    A draft may be accepted although it has not been signed by the drawer, is otherwise incomplete, is overdue, or has been dishonored.    If a draft is payable at a fixed period after sight and the acceptor fails to date the acceptance, the holder may complete the acceptance by supplying a date in good faith.    “Certified check” means a check accepted by the bank on which it is drawn. Acceptance may be made as stated in subsection (a) of this section or by a writing on the check which indicates that the check is certified. The drawee of a check has no obligation to certify the check, and refusal to certify is not dishonor of the check.     History. Source: L. 94: Entire article R&RE, p. 866, § 1, effective January 1, 1995.    Editor's note:   This section is similar to former §§ 4-3-409 , 4-3-410 , and 4-3-411 as they existed prior to 1994.   OFFICIAL COMMENT   1. The first three subsections of Section 3-409 are a restatement of former Section 3-410. Subsection (d) adds a definition of certified check which is a type of accepted draft.   2. Subsection (a) states the generally recognized rule that the mere signature of the drawee on the instrument is a sufficient acceptance. Customarily the signature is written vertically across the face of the instrument, but since the drawee has no reason to sign for any other purpose a signature in any other place, even on the back of the instrument, is sufficient. It need not be accompanied by such words as “Accepted,” “Certified,” or “Good.” It must not, however, bear any words indicating an intent to refuse to honor the draft. The last sentence of subsection (a) states the generally recognized rule that an acceptance written on the draft takes effect when the drawee notifies the holder or gives notice according to instructions.   3. The purpose of subsection (c) is to provide a definite date of payment if none appears on the instrument. An undated acceptance of a draft payable “thirty days after sight” is incomplete. Unless the acceptor writes in a different date the holder is authorized to complete the acceptance according to the terms of the draft by supplying a date of acceptance. Any date supplied by the holder is effective if made in good faith.   4. The last sentence of subsection (d) states the generally recognized rule that in the absence of agreement a bank is under no obligation to certify a check. A check is a demand instrument calling for payment rather than acceptance. The bank may be liable for breach of any agreement with the drawer, the holder, or any other person by which it undertakes to certify. Its liability is not on the instrument, since the drawee is not so liable until acceptance. Section 3-408. Any liability is for breach of the separate agreement.   ANNOTATION   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Acceptance of a bill at common law and under this section is merely the signification by the drawee of his assent to the order of the drawer. The legal meaning of an acceptance is that the acceptor engages to pay the instrument according to the tenor of his acceptance; in other words, it is a promise to pay. Van Buskirk v. State Bank, 35 Colo. 142 , 83 P. 778.   An agreement in writing to honor a draft is sufficient to create liability to a bank which in reliance thereon is the assignee for value of the draft. Posey v. Denver Nat'l Bank, 24 Colo. 199 , 49 P. 282 (1897).   A drawer may recover of an acceptor upon a verbal acceptance, whether the drawer's funds are in the acceptor's hands upon acceptance or later. Durkee v. Conklin, 13 Colo. App. 313, 57 P. 486 (1899).   Such acceptance is outside the statute of frauds because it is only a promise to pay another's funds on his order. Durkee v. Conklin, 13 Colo. App. 313, 57 P. 486 (1899).   Drawee may be estopped by conduct to assert that acceptance was not in writing. Mumm v. Taylor, 121 Colo. 157 , 213 P.2d 836 (1950).   Section applies to checks. Though a check need not be presented for acceptance in order to render the parties thereto liable, still the check itself does not operate as an assignment of any part of the fund to the credit of the drawer with the bank and the drawee bank is not liable to the holder, unless and until it accepts or certifies the check, and, except as otherwise provided all provisions applicable to a bill of exchange payable on demand apply to a check. Consequently, as no contrary provision for the acceptance of or promise to pay a check has been made, the provision applicable to a bill of exchange (i.e., draft) that acceptance or certification when made must be in writing applies also to a check. Van Buskirk v. State Bank, 35 Colo. 142 , 83 P. 778 (1905).   Where upon inquiry by correspondent bank as agent of the drawer, the bank agrees to honor check, such assent constitutes an acceptance; and upon dishonor, drawer can maintain an action for breach of the agreement. Sigel-Campion Live Stock Co. v. Davis, 69 Colo. 511 , 194 P. 468 (1921). See Gambrill v. Brown Hotel Co., 11 Colo. App. 529, 54 P. 1025 (1898).   Drawer discharged by acceptance. Where the payee of a bank check procures acceptance by the bank upon which it is drawn, upon which acceptance he obtains judgment against the latter, he cannot pursue a further remedy against the drawer of the check in the same matter, there being as to such drawer a positive statutory discharge. Roberts v. Sch. Dist. No. 1, 99 Colo. 484 , 63 P.2d 1232 (1936) (decided under repealed CSA, C. 112, § 188, negotiable instruments law).