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POINTERS IN LETTERS OF CREDIT

(2018 Bar Examinations)

Atty. Maria Diory Rabajante

LETTER OF CREDIT, DEFINED

A letter of credit is a written instrument whereby the writer requests or authorizes the
addressee to pay money or deliver goods to a third person and assumes responsibility for
payment of debt therefor to the addressee. (Transfield Philippines, Inc. v. Luzon Hydro
Corporation, G.R. No. 146717, 22 November 2004)

A letter of credit is a financial device developed by merchants as a convenient and


relatively safe mode of dealing with sales of goods to satisfy the seemingly irreconcilable
interests of a seller, who refuses to part with his goods before he is paid, and a buyer, who
wants to have control of the goods before paying. To break the impasse, the buyer may be
required to contract a bank to issue a letter of credit in favor of the seller so that, by virtue of
the letter of credit, the issuing bank can authorize the seller to draw drafts and engage to pay
them upon their presentment simultaneously with the tender of documents required by the
letter of credit. The buyer and the seller agree on what documents are to be presented for
payment, but ordinarily they are documents of title evidencing or attesting to the shipment of
the goods to the buyer. (Bank of America, NT & SA v. Court of Appeals, G.R. No. 105395, 10
December 1993)

GOVERNING LAWS

Being a product of international commerce, the impact of this commercial instrument


transcends national boundaries, and it is thus not uncommon to find a dearth of national law
that can adequately provide for its governance. This country is no exception. Our own Code
of Commerce basically introduces only its concept under Articles 567-572, inclusive, thereof.
It is no wonder then why great reliance has been placed on commercial usage and practice,
which, in any case, can be justified by the universal acceptance of the autonomy of contract
rules. The rules were later developed into what is now known as the Uniform Customs and
Practice for Documentary Credits ("U.C.P.") issued by the International Chamber of
Commerce. It is by no means a complete text by itself, for, to be sure, there are other
principles, which, although part of lex mercatoria, are not dealt with the U.C.P. The
observances of the U.C.P. is justified by Article 2 of the Code of Commerce which expresses
that, in the absence of any particular provision in the Code of Commerce, commercial
transactions shall be governed by usages and customs generally observed. There being no
specific provisions which govern the legal complexities arising from transactions involving
letters of credit not only between or among banks themselves but also between banks and the
seller or the buyer, as the case may be, the applicability of the U.C.P. is undeniable. (Bank of
America, NT & SA v. Court of Appeals, supra.)

PARTIES IN A LETTER OF CREDIT

There would at least be three (3) parties: (a) the buyer, who procures the letter of
credit and obliges himself to reimburse the issuing bank upon receipts of the documents of
title; (b) the bank issuing the letter of credit, which undertakes to pay the seller upon receipt
of the draft and proper document of titles and to surrender the documents to the buyer upon
reimbursement; and, (c) the seller, who in compliance with the contract of sale ships the goods
to the buyer and delivers the documents of title and draft to the issuing bank to recover
payment. (Bank of America, NT & Sa v. Court of Appeals, supra.)

The number of the parties, not infrequently and almost invariably in international trade
practice, may be increased. Thus, the services of an advising (notifying) bank may be utilized
to convey to the seller the existence of the credit; or, of a confirming bank which will lend
credence to the letter of credit issued by a lesser known issuing bank; or, of a paying bank,
which undertakes to encash the drafts drawn by the exporter. Further, instead of going to the
place of the issuing bank to claim payment, the buyer may approach another bank, termed
the negotiating bank, to have the draft discounted. (Bank of America, NT & SA v. Court of
Appeals, supra.)

OBLIGATION OF THE ISSUING BANK

The engagement of the issuing bank is to pay the seller or beneficiary of the credit
once the draft and the required documents are presented to it. (Philippine National Bank v.
San Miguel Corporation G.R. No. 186063, 15 January 15, 2014)

As long as the proper documents are presented, the issuing bank has an obligation to
pay even if the buyer should later on refuse payment. To allow issuing bank to refuse to honor
the Letter of Credit simply because it could not collect first from the buyer is to countenance a
breach of the Independence Principle. (The Hongkong & Shanghai Banking Corporation,
Limited v. National Steel Corporation, G.R. No. 183486, 24 February 2016)

OBLIGATION OF A CONFIRMING BANK

In order to consider a correspondent bank as a confirming bank, it must have assumed


a direct obligation to the seller as if it had issued the letter of credit itself. If the correspondent
bank was a confirming bank, then a categorical declaration should have been stated in the
letter of credit that the correspondent bank is to honor all drafts drawn in conformity with the
letter of credit. (Marphil Export Corporation v. Allied Banking Corporation, G.R. No. 187922,
21 September 2016)

PROCESS INVOLVED

Once the credit is established, the seller ships the goods to the buyer and in the
process secures the required shipping documents or documents of title. To get paid, the seller
executes a draft and presents it together with the required documents to the issuing bank. The
issuing bank redeems the draft and pays cash to the seller if it finds that the documents
submitted by the seller conform with what the letter of credit requires. The bank then obtains
possession of the documents upon paying the seller. The transaction is completed when the
buyer reimburses the issuing bank and acquires the documents entitling him to the goods.
Under this arrangement, the seller gets paid only if he delivers the documents of title over the
goods, while the buyer acquires said documents and control over the goods only after
reimbursing the bank. (Bank of America, NT & SA v. Court of Appeals, supra.)

INDEPENDENCE PRINCIPLE

The relationship of the buyer and the bank is separate and distinct from the relationship
of the buyer and seller in the main contract; the bank is not required to investigate if the
contract underlying the letter of credit has been fulfilled or not because in transactions
involving letter of credit, banks deal only with documents and not goods (BPI v. De Reny Fabric
Industries, Inc., L-2481, 16 October 1970).

The engagement of the issuing bank is to pay the seller or beneficiary of the credit
once the draft and the required documents are presented to it. The so-called “independence
principle” assures the seller or the beneficiary of prompt payment independent of any breach
of the main contract and precludes the issuing bank from determining whether the main
contract is actually accomplished or not. Under this principle, banks assume no liability or
responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of
any documents, or for the general and/or particular conditions stipulated in the documents or
superimposed thereon, nor do they assume any liability or responsibility for the description,
quantity, weight, quality, condition, packing, delivery, value or existence of the goods
represented by any documents, or for the good faith or acts and/or omissions, solvency,
performance or standing of the consignor, the carriers, or the insurers of the goods, or any
other person whomsoever. (Transfield Philippines, Inc. v. Luzon Hydro Corporation, supra.)

The independent nature of the letter of credit may be: (a) independence in toto where
the credit is independent from the justification aspect and is a separate obligation from the
underlying agreement like for instance a typical standby; or (b) independence may be only as
to the justification aspect like in a commercial letter of credit or repayment standby, which is
identical with the same obligations under the underlying agreement. In both cases the payment
may be enjoined if in the light of the purpose of the credit the payment of the credit would
constitute fraudulent abuse of the credit. (Transfield Philippines, Inc. v. Luzon Hydro
Corporation, supra.)

FRAUD EXCEPTION PRINCIPLE

The untruthfulness of a certificate accompanying a demand for payment under a


standby credit may qualify as fraud sufficient to support an injunction against payment. The
remedy for fraudulent abuse is an injunction. However, injunction should not be granted
unless: (a) there is clear proof of fraud; (b) the fraud constitutes fraudulent abuse of the
independent purpose of the letter of credit and not only fraud under the main agreement; and
(c) irreparable injury might follow if injunction is not granted or the recovery of damages would
be seriously damaged. (Transfield Philippines, Inc. v. Luzon Hydro Corporation, supra.)

DOCTRINE OF STRICT COMPLIANCE

The documents tendered by the seller/beneficiary must strictly conform to the terms of
the letter of credit. The tender of documents must include all documents required by the letter.
Thus, a correspondent bank which departs from what has been stipulated under the letter of
credit acts on its own risk and may not thereafter be able to recover from the buyer or the
issuing bank, as the case may be, the money thus paid to the beneficiary. (Feati Bank and
Trust Company v. CA, G.R. No. 940209, 30 April 1991)