NOTHING IS PERFECT
Dear Mr. Jeremy Smith,
Nothing is perfect. For example, Article 20 (b) of the UCP 500 on "originals" has been interpreted by the English court in a different way in the famous GLENCORE case, despite the fact that the early drafts were checked by hundreds of bankers worldwide in many rounds. So any form of communication cannot, and never can be perfect. That is one of the reasons why we have to use longer message in the DC Pro to avoid mis-interpretation.
BUDDHISM HELPS TO DETERMINE DISCREPANCIES
If you try to read the Buddhism publications, you can never get the right interpretation by yourself without the assistance of an experienced mentor. According to the teaching of Buddhism, the ultimate truth is beyond our power of expression and so it cannot be expressed with human words. One can only be enlightened by it in meditation.
From my own experience, Buddhism helps me to determine discrepancies more objectively as Buddhism prohibits us to think too highly of oneself and to take a more objective view on anything so that our minds would not be blocked by "self-oriented" thoughts. It also helps to keep myself calm in a heated argument or debate.
May I look forward to meeting you again for a drink. By the way I like Cabernet Sauvignon.
T. O.
http://www.tolee.com
[edited 8/21/01 7:25:19 PM]
terms and conditions
terms and conditions
T.O.,
Thank you for your words of wisdom.
But seriously, they highlight a fundamental divergence between the approach you, and some other N. American commentators, seem to advocate and the one I advocate (and which I believe the English courts -rightly in my view- generally follow). I am of the view that when reading UCP500 or other related document one should not need ‘an experienced mentor’. One should simply be able understand what is being said on the basis of the words present alone, having given those words the meaning they have in everyday usage, without the need for any reference elsewhere. I appreciate such an approach can be operationally inconvenient for banks, but the solution is simple and lies in proper (i.e. clear and unambiguous) drafting.
Given our seemingly divergent approaches, I would imagine there is plenty of scope for us to have differing views on documentary matters!
Finally, without wishing to prolong this discussion, I would like to address your comments regarding the Glencore case and sub-Article 20(b). I do not have any quarrel with the Glencore decision, given the particular document at issue (which I understand was clearly a photocopy) and the wording of the sub-Article. As a leading British barrister, in the field of ‘trade finance’, has subsequently said of this sub-Article:
‘The drafting is poor (1) There is nothing to which the word “also” refers (2) The reference to “produced” is inexplicable in the context of a set of rules which repeatedly emphasise the duty to examine documents on their face (i.e. without regard to underlying facts) (3) The words “reprographic, automated or computerised systems” are so imprecise as to invite argument’.
On the positive side, while things remain imperfect, there will be plenty of work for you and I!
Regards, Jeremy.
[edited 8/22/01 12:06:31 PM]
Thank you for your words of wisdom.
But seriously, they highlight a fundamental divergence between the approach you, and some other N. American commentators, seem to advocate and the one I advocate (and which I believe the English courts -rightly in my view- generally follow). I am of the view that when reading UCP500 or other related document one should not need ‘an experienced mentor’. One should simply be able understand what is being said on the basis of the words present alone, having given those words the meaning they have in everyday usage, without the need for any reference elsewhere. I appreciate such an approach can be operationally inconvenient for banks, but the solution is simple and lies in proper (i.e. clear and unambiguous) drafting.
Given our seemingly divergent approaches, I would imagine there is plenty of scope for us to have differing views on documentary matters!
Finally, without wishing to prolong this discussion, I would like to address your comments regarding the Glencore case and sub-Article 20(b). I do not have any quarrel with the Glencore decision, given the particular document at issue (which I understand was clearly a photocopy) and the wording of the sub-Article. As a leading British barrister, in the field of ‘trade finance’, has subsequently said of this sub-Article:
‘The drafting is poor (1) There is nothing to which the word “also” refers (2) The reference to “produced” is inexplicable in the context of a set of rules which repeatedly emphasise the duty to examine documents on their face (i.e. without regard to underlying facts) (3) The words “reprographic, automated or computerised systems” are so imprecise as to invite argument’.
On the positive side, while things remain imperfect, there will be plenty of work for you and I!
Regards, Jeremy.
[edited 8/22/01 12:06:31 PM]
terms and conditions
Dear Jeremy,
Sorry that we have to disagree with you again.
When we comment "guided by an experienced mentor", we are talking about understanding the bewildering jargons in a "Buddhism publication" and not referring to the "UCP". Please read carefully and don't generalise again.
If UCP 500 could be easily understood by oneself, then why should we need ICC to give us workshops on it? You and I , as workhsop speakers, may not exist. From our experience, if that was the fact, there should not be so many mis-interpretations of the UCP 500 by bankers, traders, or even lawyers (who are experts in writings).
Then why Mr. Gary Collyer, the ICC Banking Commission Technical Adviser, had to answer all these educational queries that repeated themselves every year? Now he has shifted this task to the National Committees and a dedicated work group.
Frankly speaking, as far as DC is concerned, my mentors are the late Bernard S. Wheble (I still have one Underwood typewritten response from him in the eighties) and Mr. Charles del Busto, on top of Mr. Gary Collyer and Professor James Byrnes on ISP 98.
A Chinese proverb says: "It is no shame to ask someone if you do not understand". A Japanese Buddhism teaching: "A full cup cannot hold any more water (knowledge)". Again we are not trying to do a free lecture here. We just wish to share with others the good things from the Far East. We appreciate one from Vincent about Irish stew.
We are from http://www.tolee.com
[edited 10/16/02 8:02:57 PM]
Sorry that we have to disagree with you again.
When we comment "guided by an experienced mentor", we are talking about understanding the bewildering jargons in a "Buddhism publication" and not referring to the "UCP". Please read carefully and don't generalise again.
If UCP 500 could be easily understood by oneself, then why should we need ICC to give us workshops on it? You and I , as workhsop speakers, may not exist. From our experience, if that was the fact, there should not be so many mis-interpretations of the UCP 500 by bankers, traders, or even lawyers (who are experts in writings).
Then why Mr. Gary Collyer, the ICC Banking Commission Technical Adviser, had to answer all these educational queries that repeated themselves every year? Now he has shifted this task to the National Committees and a dedicated work group.
Frankly speaking, as far as DC is concerned, my mentors are the late Bernard S. Wheble (I still have one Underwood typewritten response from him in the eighties) and Mr. Charles del Busto, on top of Mr. Gary Collyer and Professor James Byrnes on ISP 98.
A Chinese proverb says: "It is no shame to ask someone if you do not understand". A Japanese Buddhism teaching: "A full cup cannot hold any more water (knowledge)". Again we are not trying to do a free lecture here. We just wish to share with others the good things from the Far East. We appreciate one from Vincent about Irish stew.
We are from http://www.tolee.com
[edited 10/16/02 8:02:57 PM]
terms and conditions
T.O.,
I have noted your views and shall try to take account of them in the future.
Jeremy Smith.
I have noted your views and shall try to take account of them in the future.
Jeremy Smith.
terms and conditions
It may seem odd to come back to an ancient discussion, but I have a long memory and came across something the other day which neatly illustrates that, in English law at least, there is not a distinction between the 'terms' of a contract (a credit, in English law, being a contract) and the 'conditions' of a contract. The Oxford Dictionary of Law, 5th ed., OUP, states:
"term n … 2. ANY [my emphasis] provision forming part of a contract. A term may be either a condition, a warranty or an innominate term, depending on its importance, and either an express term or an implied term, depending on its form."
Therefore, from an English law perspective, the distinction made, for example, in Publication 511 between a 'term' and a 'condition' would seem to be a false one, as a 'condition' is a type of term. Of course, that is not to say that in other jurisdictions there is a distinction between a 'term' and a 'condition'.
"term n … 2. ANY [my emphasis] provision forming part of a contract. A term may be either a condition, a warranty or an innominate term, depending on its importance, and either an express term or an implied term, depending on its form."
Therefore, from an English law perspective, the distinction made, for example, in Publication 511 between a 'term' and a 'condition' would seem to be a false one, as a 'condition' is a type of term. Of course, that is not to say that in other jurisdictions there is a distinction between a 'term' and a 'condition'.
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
terms and conditions
Jeremy,
as the legal definition must be a subset of the general definition, I perused my "Concise Oxford" to find that there are 11 categories of definitions for the word "terms". Amongst these one can find "conditions", "word used to express a definite concept", "using as a basis of expression or thought". It also includes "word used as a definite concept" and this is where I find it opposed to the term (concept) of something which is conditional or not definite, i.e. conditions.
While I accept that it MAY be interpreted in the narrow field of vision of English law as one and the same, in common parlance and commonly in the terminology of written contracts, terms and conditions cover the definite and conditional aspects respectively.
Laurence
as the legal definition must be a subset of the general definition, I perused my "Concise Oxford" to find that there are 11 categories of definitions for the word "terms". Amongst these one can find "conditions", "word used to express a definite concept", "using as a basis of expression or thought". It also includes "word used as a definite concept" and this is where I find it opposed to the term (concept) of something which is conditional or not definite, i.e. conditions.
While I accept that it MAY be interpreted in the narrow field of vision of English law as one and the same, in common parlance and commonly in the terminology of written contracts, terms and conditions cover the definite and conditional aspects respectively.
Laurence
terms and conditions
Laurence,
I've consulted the (rather old) 7th ed of the COD available to me. As you say there are 11 'senses' (to use the COD term, not 'definitions'). However, while the (incomplete) quotation you give of sense 8 is correct, I am unable to see its relevance to supporting the idea that in doc credit operations, or more generally contract, there is a distinction between 'terms' and 'conditions' (which was the issue originally under discussion). However, I am pleased to say sense 10 of the word 'term' in the COD would seem to affirm my much earlier expressed views as it says:
'10. (in pl.) conditions, stipulations _ _ _'.
In other words, the word 'terms' is interchangeable with that of 'conditions' or 'stipulations' in everyday usage, when used in this sense.
Overall, it seems to me that both the ODL and COD support the contention that there is not any distinction between 'terms' and 'conditions' as referred to in sub-Art 13a. Incidentally, if anyone does know of jurisdictions where there is such a distinction it would be interesting to hear.
Jeremy
I've consulted the (rather old) 7th ed of the COD available to me. As you say there are 11 'senses' (to use the COD term, not 'definitions'). However, while the (incomplete) quotation you give of sense 8 is correct, I am unable to see its relevance to supporting the idea that in doc credit operations, or more generally contract, there is a distinction between 'terms' and 'conditions' (which was the issue originally under discussion). However, I am pleased to say sense 10 of the word 'term' in the COD would seem to affirm my much earlier expressed views as it says:
'10. (in pl.) conditions, stipulations _ _ _'.
In other words, the word 'terms' is interchangeable with that of 'conditions' or 'stipulations' in everyday usage, when used in this sense.
Overall, it seems to me that both the ODL and COD support the contention that there is not any distinction between 'terms' and 'conditions' as referred to in sub-Art 13a. Incidentally, if anyone does know of jurisdictions where there is such a distinction it would be interesting to hear.
Jeremy
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larryBacon
- Posts: 689
- Joined: Fri Apr 05, 2019 5:26 pm
terms and conditions
Jeremy,
I have already conceded that the COD permits, amongst others, terms to be synonymous with conditions, but there is no reciprocation if one looks up "conditions". All this proves is that "terms" MAY be interpreted as "conditions", but since "conditions" may not be interpreted as "terms", the link is not strong, particularly as you say that there are 10 other variations.
Laurence
I have already conceded that the COD permits, amongst others, terms to be synonymous with conditions, but there is no reciprocation if one looks up "conditions". All this proves is that "terms" MAY be interpreted as "conditions", but since "conditions" may not be interpreted as "terms", the link is not strong, particularly as you say that there are 10 other variations.
Laurence