On the release of goods without Presentation of B/L in carriage of goods by sea/董刚(28)
Now we can draw a conclusion: Under general circumstances, if the obligation of undue enrichment between the carrier and the person who takes delivery without B/L is tenable, the letter of guarantee is also valid. In the case of guarantor’s fraudulence, the carrier can request to court for revocating the act of guarantee.
C. The extending tendency of the independence of letter of guarantee—— Demand Guarantees
Recently, the Demand Guarantees are adopted widely in the contract of international sale on goods. It’s widely used for restricting the guarantor in case of abusing the invalidity of master obligation as the reason of counterargument. One of the cardinal principles is that the guarantee is independent of basic transaction and the relationship between guarantor and beneficiary.[40] The banks in U.S.A can’t sign and issue letter of guarantee, so they substitute it with “standby L/C”.[41]
In the case of releasing of goods without B/L, the carrier and the Demand Guarantee presenter agree that when the carrier receives the documents of claim declaration submits to the guarantor, if it’s in conformity with the requirement of Demand Guarantee, the guarantor should pay to the carrier. Thus, the validity of letter of guarantee is independent of master obligation, stressing the autonomy of will of the parties. It is conformity with the regulation of Provision 5 of 《Guarantee Law》 “If the contract of suretyship has other agreements, do according to it”.
总共33页
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