As it could be expected, we have received a dc excluding 12b. Further to previous postings (mine and others), am I right in assuming that this exclusion does not matter as long as 7c, 8c "in fine" are not excluded. In other words, in case of trouble (beneficiary's fraud), I will be protected by 7c, 8c and also 34 for that matter in case of prepayment even if 12b is excluded?
Daniel
7c, 8c, 12b
7c, 8c, 12b
Daniel,
In my opinion the prudent banker should assume s/he is in same position as they would be under UCP500.
Regards, Jeremy
In my opinion the prudent banker should assume s/he is in same position as they would be under UCP500.
Regards, Jeremy
7c, 8c, 12b
Jeremy,
Can I understand (legal cases under UCP500 and before in France) that we should not rely too much on these articles? Or have I misunderstood you?
Daniel
Can I understand (legal cases under UCP500 and before in France) that we should not rely too much on these articles? Or have I misunderstood you?
Daniel
7c, 8c, 12b
Daniel,
What I am saying is that it is difficult to predict what effect a court would say the ‘mere’ exclusion of 12(b) has. It might say, for example, that the non-exclusion of the relevant part of 7(c)/8(c) (2nd sentence) means the exclusion of 12(b) is of no effect and therefore the issuing / confirming bank is obliged to reimburse a nominated bank that has pre-paid or purchased where fraud is subsequently alleged/established etc. On the other hand, it might say that simply excluding 12(b), even though the relevant part of 7(c)/8(c) has not been excluded, means that the nominated bank has lost the right to pre-pay / purchase at the issuing / confirming bank’s risk.
Another factor is the applicable law which might give the nominated bank automatic protections that are unaffected by whether or not articles of UCP are excluded. For example, if 12(b) and the relevant part of 7(c)/8(c) were excluded on a Credit available by acceptance in England, I believe English law would say the accepting (nominated) bank is still entitled to purchase (discount) its draft at the issuing bank’s risk by virtue of the provisions of the Bills of Exchange Act 1882 à la Santander. In your example, I assume it is what a Swiss court would say that matters.
Regards, Jeremy
[edited 9/19/2007 5:28:16 PM]
What I am saying is that it is difficult to predict what effect a court would say the ‘mere’ exclusion of 12(b) has. It might say, for example, that the non-exclusion of the relevant part of 7(c)/8(c) (2nd sentence) means the exclusion of 12(b) is of no effect and therefore the issuing / confirming bank is obliged to reimburse a nominated bank that has pre-paid or purchased where fraud is subsequently alleged/established etc. On the other hand, it might say that simply excluding 12(b), even though the relevant part of 7(c)/8(c) has not been excluded, means that the nominated bank has lost the right to pre-pay / purchase at the issuing / confirming bank’s risk.
Another factor is the applicable law which might give the nominated bank automatic protections that are unaffected by whether or not articles of UCP are excluded. For example, if 12(b) and the relevant part of 7(c)/8(c) were excluded on a Credit available by acceptance in England, I believe English law would say the accepting (nominated) bank is still entitled to purchase (discount) its draft at the issuing bank’s risk by virtue of the provisions of the Bills of Exchange Act 1882 à la Santander. In your example, I assume it is what a Swiss court would say that matters.
Regards, Jeremy
[edited 9/19/2007 5:28:16 PM]
7c, 8c, 12b
Jeremy,
Thank you for your views.
Affaire à suivre, (by the courts...)
But I hope not so.
Daniel
Thank you for your views.
Affaire à suivre, (by the courts...)
But I hope not so.
Daniel
7c, 8c, 12b
Jeremy,
Me again.
There seems to be a link between 7c and 12 b in the book by M. Byrne page 88 (advice)
Daniel
Me again.
There seems to be a link between 7c and 12 b in the book by M. Byrne page 88 (advice)
Daniel
7c, 8c, 12b
Daniel, indeed there is (point 4), but it does not affect the views I have expressed above.
Regards, Jeremy
Regards, Jeremy