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غش المستفيد واثره في التزام المصرف بدفع قيمة الاعتماد المستندي : دراسة مقارنة == The Beneficiary Cheating and its Effect on the Bank Obligation in Paying the Letter Of Credit Amount(A comparative study)
Author name:
سجى ماجد داود العزاوي
Supervisor name:
علاء عمر محمد
General topic:
Law
Specific topic:
Commercial Law
Degree:
Master
University:
University Of Basrah - College Of Law And Politics - Department Of Private Law
Language:
Arabic
University location:
Basrah
First pages:
13T1626 - p.pdf
Abstract:
Letter of Credit is a Legal institution of great significance for the International Trade, because it is the most common mean for money transfer among different countries and the settlement of the international transactions like, Sales contracts Importation & Exportation without Unimpeded. The reason is that signing these contracts among parties within different countries make their settlement difficult in terms of material delivery and Receipt of money. Therefore, the Letter of Credit is a secure mean required among those parties for these settlements due to the principles which distinguish this letter and give it its importance in the International Trade. The principle of opening Credit for each contact and its terms independently and the principle of Virtual Conformity for documents made the Letter of Credit used with most of the International Contracts.Despite of the above mentioned benefits, the Letter of Credit is susceptible to Fraud, Forgery & Scam due to the evolution of Machines & Instruments which make it easy for contracting people to practice fraud. The reason is that the Letter of Credit doesn’t give absolute protection when dealing with unknown group, therefore, the buyer should be careful and get enough info about the source which is going to deal with.Fraud Practices in the Letter of Credit may affect the whole process of contracting despite the fact that these letter are separate for each contract. What make things more complicated is that the Regulations & Principles of the Letter of Credit don’t consider the Fraud Practices as exception for the Bank commitment same as most of the National Legislation except the US trade Law which clearly consider Fraud Practices an exception for the Bank commitment of the Credit. This missing Legislation whether in the Principles & Regulations or in the National Legislation kept the door open for Jurisprudence, Judiciary for the determination in the Fraud Practices issues. However, main direction for Jurisprudence, Judiciary is that the Fraud Practices are considered as exception for the principle of independence of the Letter of Credit and this Principle will not be applicable and the bank will bear no responsibility during the documents checking and the payment process of the credit value. In this case, the bank is required for the Virtual Conformity only unless if the bank found out the fraud and paid despite that. As for the relationship between the seller and the buyer, it will be defined as per the contract between them and the buyer can request compensation from the seller in case the seller Breached the contract terms and didn’t fulfill his responsibilities.
