On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(27)
Secondly, according to the Provision 5 of 《Guarantee Law》, the master obligation guaranteed should be the “master contract”. But according to the Provision 1 of the 《Jurisdictional interpretation of Guarantee Law》: “ Under the circumstance of non-infringement of the mandatory provisions of law, if the parties create the guarantee for the creditor’s right in the form regulated by the <Guarantee Law>, it may be found validity”. This regulation extends the object of guarantee from “contract” to “creditor’s right”. It’s in conformity with the current tendency of real law. So what’s the letter of guarantee of releasing of goods without B/L guarantees is the obligation of undue enrichment, this standing point has legal basis as mentioned above.
Having cleared-cut the two issues above. Whether the indemnity of releasing of goods without B/L is valid, at first, we should take into consideration that whether the obligation of undue enrichment—— the master obligation it guarantees——is valid. If the master obligation is invalid, the letter of guarantee must be invalid. Secondly, we should consider whether the guarantor has the fraudulent conduct. According to the Provision 41 of《Jurisdictional interpretation of Guarantee Law》: “If the debtor and guarantor fraud the creditor jointly to conclude the master and suretyship contracts, the creditor can claim to the court to rescind the contracts. The debtor and guarantor undertake the joint and several responsibility for the damage of creditor.”
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