Decree on Payment Systems, Means and Incidents

UNION DES COMORES Unity - Solidarity - Development President of the Union, Moroni te fl 3 fu,lltil ?û15 DECREE NO 15 Regarding payment systems, means and incidents.

THE PRESIDENT OF THE UNION,

HAVING REGARD TO the Constitution of the Union of the Comores of December 23, 2001, revised;

HAVING REGARD TO Law No 13-003/AU of June 12, 2013, relating to banking law, promulgated by Decree No 13-088/PR of August 02, 2013;

HAVING REGARD TO Law No 12-008/AU of June 28, 2012, relating to the law on combating money laundering and the financing of terrorism, promulgated by Decree No 12-153/PR of August 02, 2012;

HAVING REGARD TO Decree No 87-005/PR of January 16, 1987, regulating financial relations between the Federal Islamic Republic of the Comoros and abroad;

HAVING REGARD TO Decree No 11-078/PR of May 30, 2011, on the general reorganization and missions of the services of the Ministries of the Union of the Comores, modified by Decree No 11-139/PR of July 12, 2011;

HAVING REGARD TO the Statutes of the Central Bank of the Comoros in its articles 9, and 14 to 21;

HAVING REGARD TO Decree No 13-082/PR of July 13, 2013, relating to the Government of the Union of the Comores;

On the proposal of the Vice President, in charge of the Ministry of Finance, Economy, Budget, Investment, Foreign Trade and Privatizations;

The Council of Ministers heard;

HEREBY DECREES:

FIRST PART. GENERAL PROVISIONS

TITLE I. SCOPE OF APPLICATION AND DEFINITIONS

CHAPTER I. SCOPE OF APPLICATION

ARTICLE 1: This Decree applies to:

• Credit institutions as defined in Article 3 of Law No 13-003/AU of June 12, 2013, cited above;
• Payment institutions as defined in this Decree;
• Electronic money institutions as defined in this Decree;
• The Central Bank, subject to its particular statutes;
• The Public Treasury, subject to its particular statutes;
• The National Society of Posts and Financial Services.

CHAPTER II DEFINITIONS

ARTICLE 2: For the purposes of this Decree:

"Beneficiary": a natural or legal person who is the recipient of funds that have been the subject of a payment transaction;

"Payment Account": an account held in the name of one or more users of payment services and used for the purpose of executing payment transactions;

"Payment Card": a card issued by the bodies referred to in Article 1 of this Decree, allowing its holder to make payment and withdrawal transactions;

"Credit Card": Any payment card which, by virtue of an express stipulation in the framework contract between the issuer and the cardholder, gives rise notably to a deferred debit of the holder's account or to any other form of credit;

"Withdrawal Card": a card issued by the bodies referred to in Article 1 of this Decree, allowing its holder exclusively to withdraw funds;

"Certified Cheque": a bank cheque having the guarantee of the issuing bank. This guarantee is materialized on the cheque by the signature of the bank certifying that the necessary funds have been made available, thereby engaging its responsibility in case of non-payment within a period of three working days;

"Credit Institution": in accordance with the definition of Article 3 of Law No 13-003/AU of June 12, 2013, relating to banking law;

"Payment Institutions": are legal persons who provide as a habitual profession the following payment services: a) Services allowing the deposit of cash into a payment account and the management of a payment account; b) Services allowing the withdrawal of cash from a payment account and the management of a payment account; c) The execution of the following payment transactions associated with a payment account:

• Direct debits, including single direct debits;
• Payment transactions carried out with a payment card or a similar device;
• Transfers, including standing orders; g) The execution of the following payment transactions associated with a credit facility:
• Direct debits, including single direct debits;
• Payment transactions carried out with a payment card or a similar device;
• Transfers, including standing orders;
• The issuance of payment instruments and/or the acquisition of payment orders;
• Funds transmission services.

"Electronic Money Institution": an enterprise or any other legal person, other than a credit institution, which issues payment means in the form of electronic money;

"Sender": a person who issues the payment order and in whose name the transfer is made. The term may also refer to the sending credit institution that receives the payment order;

"Payment Means": In accordance with the definition of Article 9 of Law No 13-003/AU of June 12, 2013, cited above. Payment means notably include, the cheque, bill of exchange, promissory note, transfer, direct debit, payment cards, withdrawal cards and electronic money;

"Book Money": any instrument or process on paper or electronic support admitted by this Decree as a valid payment means;

"Electronic Money": a monetary value representing a claim on the issuer, which is: a) stored on an electronic support; b) issued against the handing over of funds of an amount whose value is not less than the monetary value issued; c) accepted as a payment means by enterprises other than the issuer.

"Payment Order": any instruction from a payer or a beneficiary to their payment service provider requesting the execution of a payment transaction;

"E-wallet": a sum of money stored electronically, subject to limits;

"Withdrawal Card": a card issued by the bodies referred to in Article 1 of this Decree and allowing exclusively its holder to withdraw funds;

"Working Day": a day during which the payment service provider of the payer or the payment service provider of the beneficiary involved in the execution of a payment transaction exercises an activity allowing the execution of payment transactions;

"Payer": a natural or legal person who is the holder of a payment account and authorizes a payment order from this payment account, or, in the absence of a payment account, a natural or legal person who gives a payment order;

"Direct Debit": a payment service aimed at debiting the payer's payment account when a payment transaction is initiated by the beneficiary based on the consent given by the payer to the beneficiary, to the beneficiary's payment service provider or to the payer's own payment service provider;

"Payment System": A system consisting of a set of instruments, banking procedures and interbank fund transfer systems, intended to ensure the circulation of money.

"Settlement System": A system intended to organize the settlement of fund transfers or financial instruments.

"Transfer": a series of operations starting with the payment order of the ordering party carried out by electronic payment means or processes with the aim of making funds available to a beneficiary. It can notably be carried out by means of a bank card, an electronic wallet or by the telepayment process or any other electronic mode of payment.

TITLE II. ON THE OBLIGATION OF BOOK PAYMENT AND THE OPENING OF AN ACCOUNT

ARTICLE 3 - Any cash or bearer instrument payment of an amount exceeding one million Comorian francs is prohibited. The purchase price of an item whose total value is greater than or equal to one million Comorian francs cannot be paid in cash.

ARTICLE 4 - Salaries, allowances and other monetary benefits due by the State, public administrations, companies or other public and semi-public persons to civil servants, agents, other personnel in active or inactive service or to their families as well as to contractors and involving sums of money must be paid by cheque or by transfer to an account opened with the financial institutions cited in Article 1 of this Decree.

ARTICLE 5 - Taxes, duties and other monetary benefits due to the State, public administrations, companies or other public and semi-public persons involving sums of money must be paid by cheque or by transfer to an account opened with the institutions and establishments cited in Article 1 of this Decree. The payment of water, electricity, and telephone bills must be made through the payment means defined in Article 2 of this Decree when the amount is greater than or equal to two hundred and fifty thousand Comorian francs.

TITLE III. ON PAYMENT AND SETTLEMENT SYSTEMS

ARTICLE 6 - The establishment and management of systems by third parties requires the prior authorization of the Central Bank. It ensures the proper functioning, security and supervision of payment and settlement systems. It takes all measures required to organize and ensure the efficiency and solidity of payment systems by interbank clearing and other payment and settlement systems with third countries.

ARTICLE 7 - The institutions and establishments cited in Article 1 of this Decree may participate in any payment and settlement system. In this case, they are subject to the particular rules applicable to said systems without prejudice to the provisions of this Decree.

ARTICLE 8 - The settlement operations of institutions and establishments carried out through a payment system are defined under the conditions fixed by the rules governing said system.

ARTICLE 9 - Notwithstanding any contrary provision, transfer orders introduced into an interbank payment system in accordance with the operating rules of said system are enforceable against third parties and the estate and cannot be cancelled until the expiration of the day on which the judgment opening a judicial reorganization or liquidation procedure is rendered against a participant, even on the grounds that such judgment has been issued. These provisions are also applicable to transfer orders that have become irrevocable. The moment at which a transfer order becomes irrevocable in the system is defined by the operating rules of said system.

ARTICLE 10 - Notwithstanding any contrary provision, clearing carried out in a clearing house or at a Clearing Access Point in compliance with the operating rules of the concerned interbank payment system is enforceable against third parties and the estate and cannot be cancelled solely on the grounds that a judgment opening a judicial reorganization or liquidation procedure has been issued against a participant in said system.

SECOND PART - ON PAYMENT MEANS

TITLE I - ON BANK AND POSTAL CHEQUES

CHAPTER 1 - CREATION AND FORM OF THE CHEQUE

ARTICLE 11 - The cheque contains:

• The denomination of cheque, inserted in the text of the instrument and expressed in the language used for drawing up this instrument;
• The unconditional order to pay a determined sum;
• The name of the person who must pay, named the drawee;
• The indication of the place where payment must be made;
• The indication of the date and place where the cheque is created;
• The signature of the person who issues the cheque, named the drawer.

ARTICLE 12 - The instrument in which one of the statements indicated in Article 11 is missing cannot be considered as a cheque, except in the cases determined by the following paragraphs. In the absence of special indication, the place designated next to the name of the drawee is deemed to be the place of payment. If several places are indicated next to the name of the drawee, the cheque is payable at the first place indicated. In the absence of these indications or any other indication, the cheque is payable at the place where the drawee has its principal establishment. The cheque without indication of the place of its creation is considered as drawn in the place designated next to the name of the drawer.

ARTICLE 13 - The cheque is drawn on a credit institution having funds at the disposal of the drawer and in accordance with an express or tacit convention, according to which the drawee has the right to dispose of these funds by cheque. Nevertheless, in case of non-observance of these prescriptions, the validity of the instrument as a cheque is not affected. Instruments drawn and payable in the Union of the Comoros in the form of cheques on any other person than those mentioned in the first paragraph are not valid as cheques.

ARTICLE 14 - The cheque cannot be accepted if a mention of acceptance of the cheque is deemed unwritten. However, the drawee has the option to visa the cheque; the visa has the effect of establishing the existence of the funds on the date it is given.

ARTICLE 15 - The cheque may be stipulated payable:

• To a named person, with or without the express clause "to order";
• To a named person, with the clause "not to order" or an equivalent clause;
• To bearer. The cheque for the benefit of a named person, with the mention "to bearer", or an equivalent term, counts as a bearer cheque. The cheque without indication of the beneficiary counts as a bearer cheque.

ARTICLE 16 - The cheque may be to the order of the drawer himself. The cheque may be drawn for the account of third parties. The cheque cannot be drawn on the drawer himself, except in the case where it is a cheque drawn between different establishments of the same drawer and provided that this cheque is not a bearer cheque. Any stipulation of interest inserted in the cheque is deemed unwritten.

ARTICLE 17 - The cheque may be payable at the domicile of a third party, either in the locality where the drawee has his domicile, or in another locality, provided however that the third party is a credit institution.

ARTICLE 18 - The cheque whose amount is written both in full letters and in figures is valid, in case of difference, for the sum written in full letters. The cheque whose amount is written several times, either in full letters or in figures, is valid, in case of difference, only for the lesser sum. The minimum amount for the issuance of a cheque payable at a credit institution is 10,000 Comorian francs.

ARTICLE 19 - If the cheque bears signatures of persons incapable of obligating themselves by cheque, false signatures or signatures of imaginary persons, or signatures which, for any other reason, could not bind the persons who signed the cheque, or in whose name it was signed, the obligations of the other signatories are not less valid.

ARTICLE 20 - Whoever appends his signature on a cheque, as representative of a person for whom he did not have the power to act, is obliged himself by virtue of the cheque and, if he has paid, has the same rights as the purported representative would have had. The same applies to the representative who has exceeded his powers.

ARTICLE 21 - The drawer is guarantor of payment. Any clause by which the drawer exempts himself from this guarantee is deemed unwritten.

ARTICLE 22 - If an incomplete cheque at issuance has been completed contrary to the agreements entered into, the non-observance of these agreements cannot be opposed to the holder, unless he has acquired the cheque in bad faith or, in acquiring it, has committed a gross fault.

ARTICLE 23 - Any cheque for which the corresponding funds exist at the disposal of the drawee must be certified by the drawee if the drawer or the holder requests it, except for the option for the drawee to replace this cheque with a cheque issued under the conditions provided for in the third paragraph of Article 15. The funds of the certified cheque remain, under the responsibility of the drawee, blocked for the benefit of the holder until the end of the presentation period fixed by Article 40 of this Decree.

ARTICLE 24 - Any person who issues a cheque in payment must justify his identity by means of a valid official document bearing his photograph.

CHAPTER 2 - ON TRANSMISSION AND AVAL

SECTION 1 - ON TRANSMISSION

ARTICLE 25 - The cheque stipulated payable to the benefit of a named person with or without the express clause "to order" is transmissible by way of endorsement. The cheque stipulated payable to the benefit of a named person with the clause "not to order" or an equivalent clause is transmissible only in the form and with the effects of an ordinary assignment. Endorsement may be made even in favor of the drawer or any other obligor. These persons may endorse the cheque again.

ARTICLE 26 - The endorsement must be pure and simple. Any condition to which it is subordinated is deemed unwritten. Partial endorsement is null. The endorsement of the drawee is also null. The endorsement by the bearer counts as a blank endorsement. The endorsement to the drawee counts only as a receipt, except in the case where the drawee has several establishments and where the endorsement is made for the benefit of an establishment other than the one on which the cheque was drawn.

ARTICLE 27 - The endorsement must be inscribed on the cheque or on a sheet attached to it, called an allonge. It must be signed by the endorser.

ARTICLE 28 - The endorsement transmits all rights resulting from the cheque. If the endorsement is blank, the holder may:

1. Fill in blank, either the name, or his own name, or the name of another person;
2. Endorse the cheque again in blank or to another person;
3. Hand over the cheque to a third party, without filling in the blank and without endorsing it.

ARTICLE 29 - The endorser is, unless otherwise agreed, guarantor of payment. He may prohibit a new endorsement; in this case, he is not liable for guarantee towards the persons to whom the cheque is subsequently endorsed.

ARTICLE 30 - The holder of the endorsable cheque is considered a legitimate holder if he justifies his right by an uninterrupted series of endorsements, even if the last endorsement is blank. Struck-out endorsements are, for this purpose, deemed unwritten. When a blank endorsement is followed by another endorsement, the signatory of the latter is deemed to have acquired the cheque by the blank endorsement.

ARTICLE 31 - An endorsement appearing on a bearer cheque renders the endorser liable under the terms of the provisions governing recourse; it does not, moreover, convert the instrument into a cheque to order.

ARTICLE 32 - When a person has been dispossessed of a cheque by some event whatever, the holder in whose hands the cheque has come, whether it is a bearer cheque or an endorsable cheque for which the holder justifies his right in the manner indicated in the previous Article 30, is only obliged to surrender the cheque if he has acquired it in bad faith or if, in acquiring it, he has committed a gross fault.

ARTICLE 33 - The persons sued by virtue of the cheque cannot oppose to the holder exceptions based on their personal relations with the drawer or previous holders, unless the holder, in acquiring the cheque, has acted knowingly to the detriment of the debtor.

ARTICLE 34 - When the endorsement contains the mention "value in collection", "for collection", "by proxy" or any other mention implying a simple mandate, the holder may exercise all the rights resulting from the cheque, but he cannot endorse it except by way of proxy. Obligors cannot, in this case, invoke against the holder only the exceptions that would be opposable to the endorser. The mandate contained in an endorsement of proxy does not end by the death of the principal or the occurrence of his incapacity.

ARTICLE 35 - An endorsement made after the protest or an equivalent finding, or after the expiration of the presentation period, produces only the effects of an ordinary assignment. Unless proof to the contrary, the endorsement without date is presumed to have been made before the protest or equivalent findings or before the expiration of the presentation period. It is forbidden to antedate orders under penalty of forgery.

SECTION 2 - ON AVAL

ARTICLE 36 - The payment of a cheque may be guaranteed for all or part of its amount by an aval. This guarantee is provided by a third party, except the drawee, or even by a signatory of the cheque.

ARTICLE 37 - The aval is given on a cheque or on an allonge. It is expressed by the words "good for aval" or by any other equivalent formula; it is signed by the giver of the aval. It is considered to result from the sole signature of the giver of the aval, affixed to the recto of the cheque, except when it is the signature of the drawer. The aval must indicate for whose account it is given. In the absence of this indication, it is deemed given for the drawer.

ARTICLE 38 - The giver of the aval is bound in the same manner as the person who has stood guarantor. His engagement is valid, even if the obligation he guaranteed is null for any cause other than a defect of form. When he pays the cheque, the giver of the aval acquires the rights resulting from the cheque against the guaranteed party and against those who are bound to the latter by virtue of the cheque.

CHAPTER 3 - ON PRESENTATION AND PAYMENT

ARTICLE 39 - The cheque is payable at sight. The cheque presented for payment before the day indicated as the date of issuance is payable on the day of presentation.

ARTICLE 40 - The cheque issued and payable in the Union of the Comoros must be presented for payment within a period of eight days. The cheque issued outside the territory and payable in the Union of the Comoros must be presented within a period of seventy days. The starting point of the periods indicated in the second paragraph is the day indicated on the cheque as the date of issuance.

ARTICLE 41 - When a cheque payable in the Union of the Comoros is issued in a country where a calendar other than the Gregorian calendar is in use, the day of issuance is brought back to the corresponding day of the Gregorian calendar.

ARTICLE 42 - Presentation to a clearing house is equivalent to presentation for payment.

ARTICLE 43 - If the funds exist, the drawee must pay even after the expiration of the presentation period. He must also pay even if the cheque was issued in violation of the injunction provided for in Article 186 and the prohibition provided for in the first paragraph of Article 197.

Opposition to payment by cheque is only admitted in case of loss, theft or fraudulent use of the cheque, or judicial reorganization or liquidation of the holder. The drawer must immediately confirm his opposition in writing, whatever the support of this writing. Any credit institution must inform account holders in writing of the sanctions incurred in case of opposition based on a cause other than those provided for in this article. If, despite this prohibition, the drawer makes an opposition for other...