The basis in legal theory for the relationship of banker and seller under the banker's commercial credit

Vanthavong, Saysangouane (1978) The basis in legal theory for the relationship of banker and seller under the banker's commercial credit. LL.M(R) thesis, University of Glasgow.

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The banker's commercial credit, an important device for payment, has become much in use nowadays in world trade to finance foreign business. Prom a businessman's point of view the credit looks simple but the study of the legal relationship engendered by this mercantile instrument has caused much difficulty among lawyers. The present dissertation is concerned to set out attempts to fit the banker-seller relationship arising under the irrevocable credit into a theory and to examine and criticise these in the light of their national law and Scottish law. The first chapter takes consideration of the theories which see the credit in terms of contracts involving all three parties. This brings us to examine seven main theories: 1. The Guarantee Theory s It is suggested that the banker`s promise to the seller merely amounts to a guarantee by him of payment by the buyer. The main objection is that in the credit the banker has a primary obligation and not secondary or accessory to other obligation as in a guarantee. 2. The Delegation Theory: The buyer (delegant) requests the bank (delegue), his debtor under the contract for the arrangement of the credit, to pay the debt to the seller (delegataire). This theory cannot answer all the requirements of the credit in view of the fact that the seller`s acceptance is needed to make the banker bound by his undertaking. 3. The Personal Bar or Estoppel Theory: The irrevocable credit represents that the banker has in his hand from the buyer sufficient funds to pay the seller's drafts and, consequently, he is barred from denying this. This view is not in line with the practice of the credit and was rejected in Morgan v. Lariviere (1875) L.R. 7 H.L. 423, k. The Assignment Theory: The irrevocable credit is regarded as constituting a contract between the banker and the buyer which is assigned simultaneously by the latter to the seller. In considering this it is hard to bring the facts into line with the theory and moreover the theory will render the seller subject to any defences the bank has against the buyer. 5. The Novation Theory: There is a novation of the sale contract, i.e. the buyer drops out of the contract and it becomes binding between the banker and the seller. This argument would lead to the loss of the buyer`s right to reject the goods which are not conform to the contract of sale and also the banker would be involved with the dealings with the goods. 6. The Agency Theory: (a) The buyer is acting as the sellers agent in arranging for the credit according to the terms laid down in the contract of sale. According to this theory the seller would be liable for the fraudulent acts of his agent, the buyer, in performing his duty within his authority. (b) The banker acting according to the buyer's instructions, may be deemed to act as the buyer`s agent. The objection to this argument is that the banker undertakes a primary obligation towards the seller and is not acting as the buyer's agent. 7. The Jus Quaeaitum Tertio Theory: It is suggested that there is a contract between the buyer and the banker conferring the benefit of it to the seller, a third party. This theory cannot stand in the light of English law which does not recognise a right arising from jus quaesitum tertio contract. Jus quaesitum tertio is a well-established principle in the law of Scotland and presents some similarities with the credit but it cannot Satisfy the requirements of the credit regarding its origin and legal consequences. The second chapter concerns the Mercantile Speciality theorys. It is favoured by many authors of common law countries since it is the only solution to help them to overcome the problem of consideration encountered in the credit. The third chapter considers the ordinary contractual theories. Unlike the first chapter it takes consideration of the relationship between the banker and the seller only. (Abstract shortened by ProQuest.).

Item Type: Thesis (LL.M(R))
Qualification Level: Masters
Keywords: Economics, Banking
Date of Award: 1978
Depositing User: Enlighten Team
Unique ID: glathesis:1978-72645
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 11 Jun 2019 11:06
Last Modified: 11 Jun 2019 11:06

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