Under former section 3-409, petition alleging that a bank had agreed to pay a check, and that bank's representation to holder should have been reasonably expected to and actually did induce forbearance by holder as to any legal rights which were available against drawer, stated a cause of action. Bigger v. Fremont Nat. Bank, 215 Neb. 580, 340 N.W.2d 142 (1983).
Under former section 3-409, there exist separate bases of liability of drawee banks which arise apart from the check itself, including the doctrine of promissory estoppel. Bigger v. Fremont Nat. Bank, 215 Neb. 580, 340 N.W.2d 142 (1983).
Under former section 3-409, a check, in the absence of special circumstances, is not a legal or equitable assignment of drawer's funds in the hands of the drawee and gives the holder of the check no right of action against the drawee, even though the drawer has on deposit sufficient funds to pay it. Galyen Petroleum Co. v. Hixson, 213 Neb. 683, 331 N.W.2d 1 (1983).
1. This section is a restatement of former section 3-409(1). Subsection (2) of former section 3-409 is deleted as misleading and superfluous. Comment 3 says of subsection (2): "It is intended to make it clear that this section does not in any way affect any liability which may arise apart from the instrument.". In reality subsection (2) did not make anything clear and was a source of confusion. If all it meant was that a bank that has not certified a check may engage in other conduct that might make it liable to a holder, it stated the obvious and was superfluous. Section 1-103 is adequate to cover those cases.
2. Liability with respect to drafts may arise under other law. For example, section 4-302 imposes liability on a payor bank for late return of an item.