THE STANDBY LETTER OF CREDIT: WHAT IT IS AND HOW TO USE IT
Entering into a commercial or financial transaction always involves certain risks for the seller or the financier. The most serious risk is that of not being paid. There are many methods available to help ensure payment. One such method is through the use of a letter of credit.
The letter of credit substitutes the credit of a third party, usually a bank, for that of the buyer or debtor. In transactions in which a commercial letter of credit is used, the bank agrees to pay the seller for the goods sold, usually upon presentation of a document stating that the goods have been received by the buyer. In transactions in which a standby letter of credit is used, the bank agrees to pay the financier if the debtor defaults upon his obligation to pay. In both cases, the seller or financier is assured of payment, provided the conditions of the letter of credit are satisfied. Upon payment by the bank, the buyer or debtor is obligated to reimburse the bank.
Three legal relationships exist in a letter of credit transaction. First is the contractual relationship between the seller and buyer or the financier and debtor evidenced by a contract for the sale of goods or a contract to lend money. The underlying contract, in addition to creating an obligation of payment or performance, requires the buyer or debtor to arrange for a bank (the issuer) to issue a letter of credit to the seller or financier (the beneficiary). Second is the contractual relationship between the bank and the buyer or debtor (the bank’s customer). The customer arranges for the bank to issue the letter of credit in favor of the beneficiary, and the customer agrees to pay the bank for the amounts paid under the letter of credit. Third is the relationship between the issuer and the beneficiary. This relationship is evidenced by the letter of credit. In most cases, Article Five of the Uniform Commercial Code (UCC) governs the use and interpretation of letters of credit. The UCC defines a letter of credit as “an engagement by a bank or other person made at the request of a customer that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the letter of credit. There is no particular form required for a letter of credit other than that it must be in writing and signed by the issuer. No consideration is necessary.
These three relationships are separate and distinct. The letter of credit is independent from the underlying business transaction between the bank’s customer and the beneficiary of the letter of credit. This independence from the underlying contract creates a primary obligation on the part of the bank to the beneficiary and is the key to the utility of a letter of credit. The bank’s obligation to honor the letter of credit is not conditioned upon performance or nonperformance of the underlying contract. Instead, the bank’s only obligation is to determine whether the drafts or demands for payment made by the beneficiary comply with the conditions specified in the letter of credit.
If the letter of credit requires presentation of documents for payment, then the bank must examine the documents with care to ascertain whether, on their face, they appear to comply with the terms of the letter of credit. If the conditions specified in the letter of credit have been satisfied, the bank must pay the beneficiary unless a required document is forged or fraudulent, or there is fraud in the transaction. If the fraud or forgery is not apparent on the face of the document, the bank may not refuse payment even if notified by its customer that there has been a fraud or a forgery committed. A court may, however, enjoin payment in such a case.
Upon payment of the letter of credit by the bank, the customer has no cause of action against the bank for improperly honoring the demand for payment unless the bank accepted noncomplying documents and did not use care and good faith in examining them. When the beneficiary makes a demand for payment of the letter of credit, he warrants to all interested parties that the necessary conditions of the letter of credit have been satisfied. If the beneficiary has made an improper demand for payment and did in fact receive payment, then the customer has a cause of action against the beneficiary for breach of this warranty.
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