The law relating to documentary credits from a South African perspective with special reference to the legal position of the issuing and confirming banks

[摘要] ENGLISH ABSTRACT: The documentary credit is one of the most important methods of payment utilised in international trade. This versatile instrument is encountered in a variety of forms. In its simplest form it is an undertaking by a bank given on application by a buyer-importer (the bank's client) to pay the seller-exporter (the beneficiary) against delivery of stipulated documents. It has two essential characteristics: (i) the bank's undertaking to pay the beneficiary is independent of the contract of sale and the contract between the bank and its client; and (ii) the bank will pay only against the precise documents stipulated in the credit. In Chapter One the different relationships established between the parties involved are dealt with against this background, and the different types of credits are discussed. Documentary credits are, comparatively speaking, modern instruments. Possible historical origins are explored briefly in Chapter Two. Documentary credits are virtually invariably applied for and issued subject to the Uniform Customs and Practice for Documentary Credits (the UCP). The UCP is a set of rules formulated by the International Chamber of Commerce. The modern history of documentary credits as reflected in the development of the UCP is discussed in Chapter Three. The legal nature of the UCP is analysed from a civilian, common-law and South African perspective in Chapter Four. The legal nature of the relationship between the bank and the beneficiary is the focal point of Chapter Five. The question is approached from a civilian (especially German and Dutch), common-law (especially English and American) and South African point of view. Special attention is devoted to the ability (or inability) of the traditional law of contract of the different jurisdictions to provide a theoretical foundation for (i) the independence of the bank's obligation, and (ii) the irrevocability of the bank's undertaking. The conclusion arrived at is that the South African law of contract is able to provide an adequate basis for this relationship in general and these two matters in particular. In the final chapter the defences available to the bank against the beneficiary's claim are scrutinised, as well as the possibility of the bank being interdicted from paying the beneficiary. Related issues such as anti-dissipation interdicts and attachments in the documentary-credit context are also dealt with. These questions are likewise investigated from a civilian, common-law and South African perspective. This investigation leads to the conclusion that the South African law is essentially in harmony with the law elsewhere and that our courts have been successful to date in protecting the integrity of documentary credits.

[发布机构] Stellenbosch University