Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - DOCUMENTARY CREDITS (2ND EDITION)
DOCUMENTARY CREDITS (2nd Edition). Raymond Jack, Q.C., Circuit Judge. Butterworths, London (1993) xxviii and 315 pp., plus 77 pp. Appendices and 9 pp. Index. Hardback £79.
This is a book clearly and logically written, which is a pleasure to read. In my respectful opinion, the author has succeeded in his intention stated at the beginning of the preface to the first edition and reproduced in this, “to set out the law and practice relating to documentary credits in a manner which will be of assistance to banks and to the commercial men who use credits, while also providing the more detailed discussion of the relevant law which lawyers may need”.
The wide comprehension of the work is shown by its chapters: introduction to documentary credits and to the ICC Uniform Customs and Practice for Documentary Credits; types or categorizations of documentary credits; buyer and seller (applicant and beneficiary); the applicant and the issuing bank; the contracts of the issuing bank and the confirming bank with the seller; the correspondent bank; the collecting bank and the negotiation bank; the documents and their examination; fraud and injunctions; transfer and assignment; the banks’ security; standby credits and demand guarantees; and conflict of laws, illegality, exchange control and sovereign immunity. The “documentary credits” referred to in the first chapter are the traditional letters of credit. Of the documents dealt with in the penultimate chapter: “standby credits” guarantee performance of obligations to pay, which are primarily imposed on parties to the underlying transactions (such as buyers under contracts of sale), rather than (as do letters of credit) create primary obligations to make payments on behalf of such parties; while “demand guarantees”, otherwise known as first demand guarantees, performance guarantees or performance bonds, create obligations to pay in case of default of performance, on the part of parties to the underlying transactions, of other obligations than debts (such as sellers’ defaults in delivering goods which comply with contracts of sale).
The practicality of the work is apparent not only from the detailed discussion of cases illustrative of what happens in practice but from the appendices, which comprise: 1993 revision of Uniform Customs and Practice; index to 1993 revision and cross-references to 1983 revision; 1983 revision; ICC Uniform Rules for Demand Guarantees; and standard forms used by Midland Bank Plc in connection with documentary credits. The occasion of the publication of the second edition only two years after the first consisted in the publication of the 1993 revision of the Uniform Customs. But, naturally in view of the international ambit of documentary credits reflected in the last chapter, the author also accepted the opportunity to take into account the coming into force of the EEC Convention on the Law Applicable to Contractual Obligations 1980 (the Rome Convention) on 1 April 1991 in England and Wales, to the law of which the book is confined.
The contents of the book are therefore wholly consonant with the third paragraph of the preface to the first edition:
“The law and practice relating to documentary credits comes [sic] from four primary sources. They are first the general principles of contract law from which the legal rules relating specifically to documentary credits have been developed and to which reference must be made to understand those rules and to answer any problem which has not yet been resolved by the courts. Second, there are the decisions of the courts which specifically relate to documentary credits …. Third,… there are the Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce. Lastly, there is the established practice of banks.”
Nonetheless I am not content with the author’s attitude towards the general principles of the law and, in particular, with his treatment of the common law, in which those general principles still mostly abide. There seems to me to be in the text an imbalance in favour of the Uniform Customs and Practice and Uniform Rules. The author’s approach appears in para. 1.29:
“In cases decided by an English court prior to 1962 the court will not have been concerned with the Uniform Customs. … The approach must now be to examine the Uniform Customs to see whether they provide an answer to the point at issue…. Of course, if the Uniform Customs are silent on a point, then nothing stands in the way of applying a pre-1962 decision which covers it.”
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