Статья. Опубликована в сборнике University of Arizona James E. Rogers College of Law. 2008What is fraud in a letter of credit transaction?
Negotiable Instrument law and Holders in Due Course
Assignees
Negotiation and Negotiating Banks
Confirming Banks
Beneficiaries
Conclusion"Giving sanction to fraudulent transactions is a singularly unpalatable idea, but the responsibility for the mess left in the wake of fraud will almost always fall to an innocent party. Letter of credit (LC) transactions are particularly fertile ground for fraud, since the terms of their payment are independent from the terms of the underlying transactions they cover.1 Banks involved in a LC transaction are under no duty to investigate contractual compliance and are quite content to avoid the distraction of legal disputes; their reputations and success depends on the certainty of payments going through.2 Likewise, the rules governing LCs and the courts interpreting them recognize the threat to the marketplace viability of LCs as a payment mechanism if their effectiveness is anything less than certain. It is an axiom and codified rule of LC law that banks deal in documents and not with goods, services or performance to which the documents may relate.3 Of course when fraud is found to taint a LC transaction, the banks are quick to remove their blinders and are just as keen as the transacting parties to avoid bearing the loss.
Certain parties may enjoy some protections when fraud is uncovered. Courts and legislators have recognized that the loss is best shouldered by the party in the best position to take precautions4 and have developed a corresponding aversion to leaving innocent parties in a lurch. For example, a holder of an accepted draft qualifying as holder in due course may enjoy the codified and definite protections established by the law of negotiable instruments and letters of credit in addition to the protections available to him under common law. However, the myriad incarnations a LC transaction may take means that the language in the codified protections may be too narrow to protect innocent parties who fail to meet the letter of the law. And it is also likely that an undeserving party may find shelter under a liberal or misinformed construction of codified language."
