جستجوی مقالات مرتبط با کلیدواژه « ضمانتنامه بانکی » در نشریات گروه « فقه و حقوق »

Since the parties of the bank guarantee and documentary credit act only on the basis of documents, they are called documentary transactions. Recognizing the legal nature of these transactions is important because of the fact that if these two legal entities (documentary credit and bank guarantee) are of a contractual nature, the recognition of their elements are based on general rules and principles of contract law and if they are to be identified as (a) nominate/specific contract (namely the contracts which their rules and conditions are prescribed in law), they have the capability of completion and resolution of disputes only pursuant to the applicable provisions of such nominate/specific contract.  Lawyers have variety of opinions in this respect and there is no consensus on the nature of the bank guarantee in judicial proceeding. The examination of cases involving documentary credits also shows that the courts do not discuss the nature of the documentary credit agreement and merely cast a vote by referring to article 10 of the civil code, that is, the documentary credit validity is accepted under article 10.

One of the basic characteristics of documentary transactions is the independence of these transactions from the underlying contract and the documentary payment terms in these transactions. The beneficiary of the letter of credit shall present the documents stated in the Letter of Credit or the bank guarantee in order to claim payment. In some cases, the documents presented by the beneficiary are fraudulent while this action might have been committed without cooperation or even the information of the beneficiary by a third party. Whether or not the principle of fraud would be applicable regarding the third party fraudulent actions, two viewpoints have been presented. Many lawyers believe in the view that the fraud principle is also applicable for the third party deceptions, and the payment shall be withheld (it shall be refrained from payment) in this regard. On the other hand, another group believes that the fraud principle is not applicable against the guiltless beneficiary, and the amount in the letter of credit shall be paid. This article will review and analyze the position of legal systems in this respect.