notes Trust Receipts Law Governing Law v Presidential
Decree
115
governs
the
trust
receipts
system,
including
the
criminal
penalty
for
violation
of
the
trust.
PD
115
does
not
violate
the
constitution
v It
is
a
declaration
by
the
legislative
authority
that,
as
a
matter
of
public
policy,
the
failure
of
a
person
to
turn
over
the
proceeds
of
the
sale
of
goods
covered
by
a
trust
receipt
or
to
return
said
goods
if
not
sold
is
a
public
nuisance
to
be
abated
by
the
imposition
of
penal
sanctions.
(Tiomico
v.
CA)
v There
is
a
contention
that
a
violation
of
a
trust
receipt
agreement
should
result
only
in
a
civil
action
for
collection.
However,
TRL
is
a
valid
exercise
of
police
power
as
it
punishes
an
offense
malum
prohibitum
and
enacted
to
punish
the
dishonesty
and
abuse
of
confidence
in
handling
of
money
or
goods
to
the
prejudice
of
the
bank.
(People
v.
Nitafan)
Not
the
payment
of
the
loan,
but
as
punishment
for
dishonesty
v TRL
does
not
seek
to
enforce
payment
of
loan,
rather
it
punishes
dishonesty
and
abuse
of
confidence
in
handling
of
money
or
goods
to
the
prejudice
of
another
regardless
of
whether
the
latter
is
the
owner.
v In
a
pure
trust
receipts
transaction,
the
goods
are
owned
by
bank
and
only
released
to
importer
in
trust
subsequent
to
the
grant
of
the
loan
–
the
bank
acquires
a
security
interest
in
the
goods
as
holder
of
a
security
title
for
the
advances
it
had
mad
to
the
entrustee.
In
a
certain
manner,
trust
receipts
partake
of
the
nature
of
a
conditional
sale
where
the
importer
becomes
absolute
owner
of
the
imported
merchandise
as
soon
as
he
had
paid
its
price.
(Colinares
v.
CA)
Where
transaction
is
not
a
TRA
but
merely
a
loan
v Where
debtor
received
goods
subject
of
trust
receipt
before
trust
receipt
itself
was
entered
into,
the
transaction
in
question
is
a
simple
loan
and
not
a
trust
receipt
agreement.
(Consolidated
Bank
v.
CA)
Definition
and
Nature
of
Trust
Receipt
v A
trust
receipt
is
a
commercial
document
whereby
the
bank
releases
the
goods
in
the
possession
of
the
entrustee
but
retains
ownership
thereof
while
the
entrustee
shall
sell
the
goods
and
apply
the
proceeds
for
the
full
payment
of
his
liability
with
the
bank.
It
is
a
security
arrangement
to
which
a
bank
acquires
ownership
of
the
imported
personal
property.
(Garcia
v.
CA)
True
nature
of
a
trust
receipt
transaction
v It
is
a
convenient
business
device
to
assist
importers
and
merchants
solve
their
financing
problems.
The
State
in
enacting
the
law,
sought
to
find
a
way
to
assist
importers
and
merchants
in
their
financing
in
order
to
encourage
commerce
in
the
PH.
(Ng
v.
People)
Obligations
of
the
entrustee
In
Gonzalez
v.
Hongkong
&
Shanghai
Banking
Corp.,
the
Court
held
that
a
TRA
imposes
upon
the
entrustee
the
obligation
to:
(a) Deliver
to
the
entruster
the
price
of
the
sale;
OR
(b) If
the
merchandise
is
not
sold,
to
return
the
same
to
the
entruster.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 1
Special Commercial Laws
notes A
violation
of
any
of
these
undertakings
constitute
estafa.
What
is
a
trust
receipt?
v It
is
a
document
which
expresses
a
security
transaction
where
the
lender,
having
no
prior
title
to
the
goods
on
which
the
lien
is
to
be
constituted,
and
not
having
possession
over
the
same
since
possession
thereof
remains
in
the
borrower,
lends
his
money
to
the
borrower
on
security
of
the
goods
which
borrower
is
privileged
to
sell,
clear
of
the
lien,
with
an
agreement
to
pay
all
or
part
of
the
sale
proceeds
to
the
lender.
(Metropolitan
Bank
v.
Go)
[Bance]
Essential
elements:
1. It
is
a
DOCUMENT
which
express
a
security
transaction.
While
the
PD
115
provides
that
a
trust
receipt
need
not
be
in
any
particular
form
(Sec.
5,
PD
115),
the
same
provision
of
law
also
provides
that
it
must
contain
(a)
a
description
of
the
goods,
(b)
total
invoice
value
and
(c)
the
undertaking
or
commitment
of
the
entrustee.
Hence,
while
the
law
does
not
provide
that
a
TR
must
be
in
writing,
there
can
be
no
other
way
to
interpret
the
provision
that
would
comply
with
its
requirements
other
than
that
the
TR
must
be
in
writing.
2. Entruster
has
NO
PRIOR
TITLE
to
the
goods
subject
of
the
lien
and
NOT
HAVING
POSSESSION
This
is
in
keeping
with
the
spirit
and
intention
of
the
law
which
makes
the
TRA
a
unique
tool.
It
is
to
be
remembered
that
a
TRA
is
a
business
device
to
allow
a
person
without
capital
to
acquire
goods
he
requires.
The
fact
that
the
entruster
“owns”
these
goods
is
merely
legal
fiction,
a
device
to
guard
the
rights
of
the
entruster
but
in
reality,
these
goods
were
acquired
by
the
entrustee
using
the
capital
lent
by
the
entruster.
The
essence
of
a
TRA
is
that
the
money
lent
by
the
entruster
is
to
be
used
as
capital
to
buy
the
goods.
If
these
goods
are
already
owned
by
the
entrustee,
then
it
would
contravene
with
the
purpose
of
the
law.
(Plus,
wouldn’t
it
be
a
violation
of,
if
not
the
banking
law
then,
the
corporation
law,
if
a
bank
may
hold
title
to
goods
which
may
have
no
relation
at
all
to
the
functions
of
a
bank?)
3. LENDS
his
money
to
the
borrower
on
security
of
the
goods
4. Borrower
(Entrustee)
is
privileged
to
SELL
CLEAR
OF
THE
LIEN
This
means
that
the
entruster,
while
technically
the
owner
of
the
goods,
have
no
claim/lien
to
the
same
when
the
goods
are
sold
to
a
third
person
by
the
entrustee.
The
recourse
of
the
entruster
is
with
the
entrustee.
In
the
same
manner,
a
third
person
has
no
cause
of
action
against
the
entruster
(bank)
on
matters
concerning
the
goods.
His
remedy
is
with
the
entrustee.
This
then
emphasizes
the
fact
that
the
entruster’s
ownership
of
the
goods
is
merely
legal
fiction.
Whatever
transactions
are
entered
into
by
the
entrustee
with
third
persons
concerning
the
goods
are
between
them
and
does
not
concern
the
bank.
(Why
do
I
love
“legal
fiction?”)
Furthermore,
it
must
be
emphasized
that
this
transaction
is
for
the
sale
or
for
purposes
substantially
equivalent
to
the
sale
of
goods.
Hence,
if
the
goods
were
never
meant
for
sale
but
for
the
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 2
Special Commercial Laws
consumption
of
the
borrower,
then
the
same
is
not
a
TRA.
Read
State
notes Investment
House
v.
CA.
5. AGREEMENT
to
pay
all
or
part
of
the
sale
proceeds
to
the
lender.
This
is
essential.
There
must
be
an
agreement
or
undertaking
on
the
part
of
the
entrustee
to:
(a)
deliver
the
price
of
the
sale
or
(b)
return
the
goods
if
not
sold
to
the
entruster.
Without
these
stipulations,
the
agreement
can’t
well
be
called
a
TRA
regardless
of
the
nomenclature
used
by
the
parties.
Two-‐fold
obligation
imposed
on
the
entrustee
(a) To
hold
the
goods,
documents
or
instruments
in
trust
for
the
purpose
of
selling
or
otherwise
disposing
of
them;
and
(b) To
turn
over
to
entruster
either
proceeds
thereof
to
the
extent
of
amount
owing
to
the
entruster
or
as
appears
in
the
trust
receipt,
or
the
goods,
documents
or
instruments
themselves
if
they
are
unsold
or
not
otherwise
disposed
of,
in
accordance
with
the
terms
and
conditions
specified
in
the
trust
receipts.
[Bance]
The
fancy
terms
for
these
obligations
are
entregarla
and
devolvera
which
will
be
discussed
in
a
latter
part.
Other
transactions
covered
by
TRA/Transactions
equivalent
to
sale
of
goods
A
TR
is
essentially
for
the
purpose
of
the
sale
of
goods
or
for
other
purposes
substantially
equivalent
to
their:
(a) sale
or
the
procurement
of
their
sale;
(b) manufacture
or
processing
with
the
purpose
of
ultimate
sale,
in
which
case
the
entruster
retains
his
title
over
the
said
goods
whether
in
their
original
or
processed
form
until
the
entrustee
has
complied
fully
with
his
obligation
under
the
trust
receipt;
or
(c) loading,
unloading,
shipment
or
transshipment
or
otherwise
dealing
with
them
in
a
manner
preliminary
or
necessary
to
their
sale.
Trust
receipt
agreement
is
not
a
simple
loan
v A
TRA
does
not
involve
a
simple
loan
transaction
between
a
creditor
and
debtor-‐importer.
The
law
warrants
the
validity
of
entruster’s
security
interest
as
against
creditors
of
the
trust
receipt
agreement.
Consequently,
the
goods
covered
by
the
trust
receipt
cannot
be
levied
upon
by
entrustee’s
creditors.
(Prudential
Bank
v.
NLRC)
TRA
is
a
collateral
agreement
v A
trust
receipt
agreement
is
merely
a
collateral
agreement,
the
purpose
of
which
is
to
serve
as
security
for
a
loan.
TRL
was
enacted
to
safeguard
commercial
transactions
and
to
offer
an
additional
layer
of
security
to
the
lending
bank
–
trust
receipts
are
indispensable
contracts
in
international
and
domestic
business
transactions.
(Landl
&
Company
v.
Metropolitan
Bank)
Does
PD
115
apply
if
the
loan
proceeds
were
not
used
to
acquire
goods
destined
for
sale?
Yes,
PD
115
would
apply
even
when
the
trust
receipt
issued
covers
goods
or
items
not
destined
for
sale
or
for
use
in
manufacture,
and
would
include
items
obtained
under
a
trust
receipt
used
to
repair
and
maintain
equipment
used
in
business.
If
the
beneficiary
is
not
paid
under
such
trust
receipt,
the
trustee
is
liable
under
the
law.
(Allied
Banking
v.
Ordonez)
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 3
Special Commercial Laws
notes When
transaction
is
not
a
TRA
v There
is
a
line
of
SC
decision
that
views
the
trust
receipt
institution
as
the
means
by
which
the
importation
of
goods
can
be
effected
by
importers
using
the
credit
facilities
of
the
banking
system.
v Such
that
if
the
TR
were
not
employed
as
the
means
by
which
importation
was
effected,
but
merely
resorted
to
as
collateral
for
the
loan
taken
AFTER
the
fact
of
importation,
then
the
relationship
is
governed
by
the
primary
contract
of
loan
and
not
the
trust
receipt
institution
under
PD
115,
especially
so
when
it
comes
to
the
criminal
penalty
of
estafa
imposed
on
violation
of
the
trust.
(Check
cases.)
[Bance]
This
is
again
a
recognition
of
the
TR
as
a
convenient
business
tool
to
allow
a
person
without
the
sufficient
means
to
acquire
the
necessary
goods.
The
basic
idea
is
that
the
TRA
is
used
to
acquire
the
goods
such
that,
if
the
goods
were
already
acquired
(even
with
money
lent
by
the
bank)
before
the
execution
of
a
TRA,
then
it
is
not
at
all
a
TRA
and
the
borrower
is
not
liable
for
estafa.
The
transaction
is
merely
a
loan.
This
is
to
curb
the
usual
practice
of
banks
of
lending
money
and
using
a
TRA
as
an
additional
security.
Who
are
parties
to
a
TRA?
(1) Entrustee
–
to
whom
goods
are
delivered
for
sale
or
processing
and
who
bears
the
risk
of
loss.
(2) Entrustor/Entruster
–
the
one
entitled
to
the
proceeds
from
the
sale
of
the
goods
to
the
extent
of
the
amount
owing
to
the
entruster
or
as
appears
in
the
trust
receipt,
or
to
the
return
of
the
goods,
documents
or
instruments
in
case
of
non-‐sale,
and
to
the
enforcement
of
all
other
rights
conferred
on
him
in
thr
trust
receipts.
Obligations
of
the
entrustee
(a) hold
goods,
documents
or
instruments
in
trust
for
entruster
and
dispose
of
them
strictly
in
accordance
with
the
terms
of
trust
receipt;
(b) receive
proceeds
in
trust
for
entruster
and
turn
over
same
to
entruster
to
the
extent
of
amount
owing
to
the
entruster
or
as
appears
on
TR;
(c) insure
goods
for
their
total
value
against
loss
from
fire,
theft,
pilferage
or
other
casualties;
(d) keep
said
goods
or
proceeds
thereof
whether
in
money
or
whatever
form,
separate
and
capable
of
identification
as
property
of
entruster;
(e) return
goods,
documents
or
instruments
in
event
of
non-‐sale
or
upon
demand
of
entruster;
and
(f) observe
all
other
terms
and
conditions
of
trust
receipt
not
contrary
to
provisions
of
PD
115.
(Ching
v.
Secretary
of
Justice)
Two
obligations
in
a
trust
receipt
transaction
(a) Entregarla
–
the
obligation
to
deliver
to
the
owner
(the
entruster)
of
the
merchandise
sold
the
money
received;
and
(b) Devolvera
–
the
obligation
to
return
to
the
owner
the
merchandise
received.
[Bance]
A
violation
of
any
of
these
undertakings
constitute
estafa,
and
the
mere
failure
to
return
the
undisposed
goods
is
the
gravamen
of
the
offense
and
thus,
there
is
no
need
to
prove
intent
to
defraud.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 4
Special Commercial Laws
Is
previous
demand
by
the
entrustor
to
the
entrustee
essential
to
set
up
any
notes of
the
remedies
under
the
trust
receipts?
(Meaning,
should
there
be
demand
before
the
entrustee
is
considered
in
default)
v No.
In
case
of
default
by
entrustee
on
his
obligation
under
TRA,
it
is
not
absolutely
necessary
that
entruster
cancel
the
trust
and
take
possession
of
the
goods
to
be
able
to
enforce
his
rights
thereunder.
v The
entruster
has
the
discretion
to
avail
to
cancel
the
trust
and
take
possession
of
the
goods
or
to
avail
of
any
alternative
action,
such
as
a
third
party
claim
or
a
separate
civil
action
which
it
deems
best
to
protect
its
rights,
at
any
time
upon
default
or
failure
of
the
entrustee
to
comply
with
any
of
the
terms
and
conditions
of
the
trust
agreement.
(South
City
Homes
v.
BA
Finance
Corp.)
Entrustee
always
bound
to
pay
the
loan
v An
entruster
who
has
taken
actual
and
juridical
possession
of
the
goods
may
subsequently
avail
of
the
right
to
demand
from
entrustee
the
deficiency
of
the
amount
covered
by
the
TR.
The
TR
being
only
a
security
for
the
loan
agreement,
the
full
turn-‐over
of
the
goods
subject
of
the
TR
does
not
suffice
to
divest
debtors
of
their
obligations
to
repay
principal
amount
of
their
loan.
Sec.
7
of
PD
115
expressly
provides
that
entrustee
shall
be
liable
to
entruster
for
any
deficiency.
(Landl
Company
v.
Metropolitan
Bank)
[Bance]
It
must
be
emphasized
that
the
TR
is
merely
a
collateral
agreement,
the
principal
contract
being
that
of
a
loan.
Hence,
the
mere
return
of
the
goods
subject
to
a
TRA
does
not
extinguish
the
loan
–
there
is
still
then
the
obligation
to
pay
off
the
same.
The
only
effect
of
the
return
of
the
goods
is
that
no
criminal
liability
may
arise
from
the
failure
to
do
so.
v The
entrustee-‐borrower
cannot
be
relieved
of
his
obligation
to
pay
the
loan
simply
by
abandoning
property
with
the
bank.
For
conviction
to
lie
under
PD
115,
it
must
be
shown
that
the
goods
covered
by
the
TR
were
received
from
either
the
bank
or
the
supplier.
(Ramos
v.
CA)
Who
may
be
held
criminally
liable?
v The
directors,
officers,
employees
or
other
officials
or
persons
in
the
corporation,
partnership,
association
or
other
juridical
entities
may
be
held
criminally
liable
for
the
offense,
without
prejudice
to
the
civil
liabilities
arising
from
the
criminal
offense.
The
rationale
being
that
these
officers
and
employers
are
vested
with
the
authority
and
responsibility
to
devise
means
necessary
to
ensure
compliance
with
the
law,
and
if
they
fail
to
do
so,
are
held
criminally
accountable.
(Gonzalez
v.
HSBC)
v In
Ching
v.
Secretary
of
Justice,
the
accused
signed
the
TR
merely
as
senior
VP
and
had
no
physical
possession
of
the
good.
However,
the
Court
held
that
he
cannot
escape
prosecution
for
violation
of
PD
115.
Though
the
entrustee
is
a
corporation,
nevertheless,
the
law
specifically
makes
the
officers,
employees,
etc
or
other
persons
responsible
as
they
have
the
authority
and
responsibility
to
ensure
compliance
with
the
law.
v There
is
no
need
to
allege
in
the
information
in
what
capacity
an
agent
(meaning
the
officer
or
director
of
the
corporation)
participated
to
hold
him
responsible
for
the
offense.
It
is
sufficient
to
allege
and
establish
the
failure
of
the
corporation,
who
the
agent
represented,
to
remit
the
proceeds
or
to
return
the
goods
to
the
bank-‐entruster.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 5
Special Commercial Laws
notes Should
damage
be
proved?
v No
necessarily.
Damage
to
the
entrustor
need
not
be
proven
because
the
nature
of
the
TRA
and
the
damage
caused
to
trade
circles
and
the
banking
community
in
case
of
violation
thereof
is
the
basis
for
the
criminal
offense.
Acquittal
does
not
extinguish
civil
liability
on
the
underlying
loan
v A
TRA
does
not
make
the
bank
an
investor
in
the
venture
as
to
extinguish
the
creditor-‐debtor
relationship,
and
the
acquittal
of
the
entrustee
in
the
criminal
charge
of
estafa
does
not
dissolve
the
civil
liability
arising
from
the
TRA.
The
trustee
cannot
extinguish
his
civil
obligation
under
the
TR
by
surrendering
the
goods
if
the
lender
is
not
willing
to
accept
them.
(Vintola
v.
Insular
Bank)
Innovations
of
PD
115
on
Civil
Law
Concepts
a. Exception
to
“Nemo
Dat
Quod
Non
Habet”
–
Under
Art.
1505
of
the
Civil,
the
buyer
only
acquires
whatever
title
the
seller
had
at
the
time
the
sale
was
perfected.
However,
in
a
TRA,
the
third
person
acquires
good
title
over
the
goods
even
though
the
entrustee
is
not
the
owner
of
the
same
(as
ownership
is
with
the
bank/entruster).
b. Exception
to
Rule
“Res
Perit
Domino”
–
Contrary
to
civil
law
principle
that
the
owner
bears
the
risk,
under
a
TRA,
although
the
entrustee
is
not
the
owner
of
the
goods,
should
the
goods
be
lost
while
in
his
possession,
entrustee
will
bear
the
risk
of
loss.
[Bance]
Hence,
the
reason
why
the
obligation
to
insure
the
goods
is
with
the
entrustee.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 6
Special Commercial Laws
notes Letters of Credit Letter
of
Credit
v Instrument
issued
by
a
bank
that
guarantees
its
client’s
ability
to
pay
for
imported
goods
or
services,
authorizing
an
individual
or
a
firm
to
draw
drafts
on
the
bank
or
on
its
correspondents
for
bank’s
account
under
certain
conditions
of
the
credit.
v Engagement
by
a
bank
or
other
person
made
at
the
request
of
a
customer
that
the
issuer
will
honor
a
draft
or
other
demands
or
other
complaints
with
the
condition
specified
in
the
credit.
(Prudential
Bank
v.
IAC)
v Written
instrument
whereby
the
writer
requests
or
authorizes
the
addressee
to
pay
money
or
deliver
goods
to
a
third
person
and
assumes
responsibility
for
payment
of
debt
therefor
to
the
addressee.
A
letter
of
credit,
however,
changes
its
nature
as
different
transactions
occur
and
if
carried
to
completion
ends
up
as
a
binding
contract
between
the
issuing
and
honoring
banks
without
any
regard
or
relation
to
the
underlying
contract
or
disputes
between
the
parties
thereto.
Primary
purpose
v The
primary
purpose
of
a
letter
of
creidt
is
to
substitute
for,
and
therefore
support,
the
agreement
of
the
buyer-‐importer
to
pay
money
under
a
contract
or
other
arrangement;
v But
it
does
not
necessarily
constitute
as
a
condition
for
the
perfection
of
such
arrangement.
Other
uses
v The
use
of
credits
in
commercial
transactions
serves
to
reduce
the
risk
of
nonpayment
of
the
purchase
price
under
the
contract
for
the
sale
of
goods.
However,
letters
of
credit
are
also
used
in
non-‐sale
settings
where
they
serve
to
reduce
the
risk
of
nonperformance.
Generally,
credits
in
the
non-‐sale
settings
have
come
to
be
known
as
standby
credits.
Three
Contracts
in
Letter
of
Credit
In
a
letter
of
credit
arrangement,
there
are
three
distinct
and
independent
contracts
which
are:
(1) Contract
of
sale
between
buyer
and
seller
(2) Contract
of
buyer
with
issuing
bank
(3) Letter
of
credit
proper,
in
which
the
bank
promises
to
pay
seller
pursuant
to
the
terms
and
conditions
indicated
therein.
Distinct
and
Separate
Contracts
v These
three
contracts
which
make
up
letter
of
credit
arrangement
are
to
be
maintained
in
a
state
of
perpetual
separation;
a
transaction
involving
the
purchase
of
goods
may
also
require,
apart
from
a
letter
of
credit,
a
contract
of
transportation
specially
when
the
seller
and
the
buyer
are
not
in
the
same
locale
or
country,
and
the
goods
purchased
have
to
be
transported
to
the
latter.
Does
the
mere
opening
of
a
letter
of
credit
create
a
trust
(in
favor
of
the
beneficiary?)
No,
the
mere
opening
of
a
letter
of
credit,
does
not
involve
a
specific
appropriation
of
money
in
favor
of
the
beneficiary.
It
only
signifies
that
the
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 7
Special Commercial Laws
beneficiary
may
be
able
to
draw
funds
upon
the
letter
of
credit
up
to
the
notes designated
amount
specified
therein.
It
does
not
convey
the
notion
that
a
particular
sum
of
money
has
been
specifically
reserved
or
has
been
held
in
trust.
(Feati
Bank
v.
CA)
When
is
a
letter
of
credit
perfected?
v Perfected
the
moment
when
the
correspondent
bank
pays
to
the
person
in
whose
favor
the
letter
of
credit
has
been
opened.
o Ex:
When
Chemical
Bank
of
NY
pays
seller
$10,000
on
October
15,
1973
and
debits
$10,000
to
the
account
of
Merchant
Bank,
the
letter
of
credit
is
perfected.
Letter
of
credit,
not
a
requisite
for
perfection
of
sale
v Opening
of
a
letter
of
credit
in
favor
of
a
vendor
is
only
a
mode
of
payment,
but
it
is
not
among
the
essential
requirements
of
a
contract
of
sale.
Parties
to
letter
of
credit
There
are
at
least
3
parties:
(a) Buyer
–
who
procures
the
letter
of
credit
and
obliges
himself
to
reimburse
Issuing
Bank
upon
receipt
of
the
documents
of
title;
(b) Bank
issuing
the
letter
of
credit
–
undertakes
to
pay
Seller
upon
receipt
of
the
draft
and
proper
documents
of
titles
and
to
surrender
the
documents
to
Buyer
upon
reimbursement;
and
(c) Seller
–
who
in
compliance
with
the
contract
of
sale
ships
the
goods
to
Buyer
and
delivers
the
documents
of
title
and
draft
to
the
Issuing
Bank
to
recover
payment.
Other
parties
(mostly
correspondent
banks):
(d) Advising
bank
–
to
convey
to
Seller
the
existence
of
the
credit;
(e) Confirming
bank
–
which
will
lend
credence
to
the
letter
of
credit
issued
by
a
lesser
known
Issuing
Bank;
(f) Paying
Bank
–
undertakes
to
encash
the
drafts
drawn
by
the
exporter;
or
(g) Negotiation
Bank
–
instead
of
going
to
the
place
of
the
issuing
bank
to
claim
payment,
seller
may
approach
negotiating
bank
to
have
draft
discounted.
Special
rules
in
letter
of
credit;
relationship
between
parties
(1) Relationship
between
beneficiary-‐seller
and
the
Issuer
is
not
strictly
contractual,
because
both
privity
and
a
meeting
of
the
minds
are
lacking,
yet
strict
compliance
with
its
terms
is
an
enforceable
right.
v [Bance]
There
is
no
privity
between
the
beneficiary-‐seller
and
the
Issuer
because
the
letter
of
credit
is
between
the
Issuer
and
the
buyer-‐applicant.
(2) Nevertheless,
the
letter
of
credit
is
not
a
third-‐party
beneficiary
contract
(contract
pour
atrui)
because
Issuer
must
honor
drafts
drawn
against
the
letter
of
credit
regardless
of
problems
subsequently
arising
in
the
underlying
contract.
(3) Since
thebank’s
customer
(applicant-‐buyer)
cannot
draw
on
the
letter,
it
does
not
function
as
an
assignment
by
the
customer
to
the
beneficiary;
(4) If
properly
used,
letter
of
credit
is
not
a
contract
of
suretyship
or
guarantee,
because
it
entails
a
primary
liability
on
the
part
of
the
Issuer
following
a
default;
and
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 8
Special Commercial Laws
(5) It
is
not
a
negotiable
instrument
because
it
is
not
payable
to
order
or
notes bearer
and
is
generally
conditional;
yet,
the
draft
presented
under
it
is
often
negotiable.
Case:
Feati
Bank
v.
CA
v It
is
a
fundamental
rule
that
an
irrevocable
credit
is
independent
not
only
of
the
contract
between
the
buyer-‐applicant
and
the
seller-‐ beneficiary,
but
also
of
the
credit
agreement
between
the
issuing
bank
and
the
buyer-‐applicant.
v The
non-‐compliance
by
buyer
with
its
contract
with
issuing
bank
has
no
bearing
with
the
agreement
between
the
buyer
and
the
seller.
The
relationship
between
the
issuingbank
and
the
notifying
bank,
on
the
other
hand
is
more
similar
to
that
of
an
agency,
and
not
that
of
a
guarantee
since
the
latter
is
merely
to
follow
the
instruction
of
the
issuing
bank
which
is
to
notify
or
to
transmit
the
letter
of
credit
to
the
beneficiary.
The
“Rule
of
Strict
Compliance”
v In
commercial
transactions
involving
letters
of
credit
that
the
documents
tendered
must
strictly
conform
to
the
terms
of
the
letter
of
credit.
v The
tender
of
documents
by
the
beneficiary-‐seller
must
include
ALL
documents
required,
and
that
a
correspondent
bank
which
departs
from
what
has
been
stipulated
under
the
letter
of
credit,
as
when
it
accepts
a
faulty
tender,
acts
on
its
own
risks
and
it
may
not
thereafter
be
able
to
recover
from
the
buyer
or
the
issuing
bank,
as
the
case
may
be,
the
money
thus
paid
to
the
beneficiary-‐seller.
Confirmed
letter
of
credit
v.
irrevocable
letter
of
credit
v An
irrevocable
letter
of
credit
refers
to
the
DURATION
of
the
letter
of
credit
and
simply
means
that
the
issuing
bank
may
not
without
the
consent
of
the
beneficiary
(seller)
and
the
applicant
(buyer)
revoke
his
undertaking
under
the
letter,
because
the
bank
does
not
reserve
the
right
to
revoke
the
credit.
v A
confirmed
letter
of
credit
pertains
to
the
kind
of
obligation
assumed
by
the
correspondent
bank,
which
means
that
the
correspondent
bank
gives
an
absolute
assurance
to
the
beneficiary
that
it
will
undertake
the
issuing
bank’s
obligation
as
its
own
according
to
the
terms
and
conditions
of
the
credit.
v Hence,
the
mere
fact
that
a
letter
of
credit
is
irrevocable
does
not
necessarily
imply
that
the
correspondent
bank
in
accepting
the
instruction
of
the
issuing
bank
has
also
confirmed
the
letter
of
credit.
Case:
Bank
of
PI
v.
De
Reny
Fabrics
v De
Reny
Fabrics
asked
BPI
to
open
a
letter
of
credit
with
its
US
correspondent
bank
for
the
payment
of
chemical
dyes
ordered
from
a
US
Factory.
The
LC
required
the
presentation
of
genuine
shipping
documents
to
allow
the
seller-‐beneficiary
to
draw
upon
the
LC.
However,
when
the
shipment
arrived,
it
was
found
that
the
US
factory
swindled
De
Reny
and
the
same
only
contained
colored
chalk.
De
Reny
refused
to
pay
BPI,
alleging
that
BPI
was
negligent
in
not
seeing
to
it
that
the
shipping
document
actually
tallied
with
what
was
loaded
aboard
the
ship.
v The
Court
held
that
De
Reny
Fabrics
is
liable
(and
thus
must
pay).
A
custom
in
international
banking
and
financing
negates
any
duty
on
the
part
of
a
bank
to
verify
whether
what
is
described
in
the
letters
of
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 9
Special Commercial Laws
credit
of
shipping
documents
actually
tally
with
what
is
loaded
aboard
notes a
ship.
It
is
merely
the
obligation
of
the
bank
to
pay
upon
the
presentation
of
fenuine
documents.
The
correspondent
bank
is
not
duty
bound
to
open
and
inspect
the
crates
to
see
whether
the
contents
thereof
tally
with
the
description
in
the
letter
of
credit.
[Bance]
So
what
this
basically
means
is
that
the
Issuing
Bank/correspondent
bank
is
only
required
to
check
into
the
authenticity
of
the
documents
and
that
these
are
in
order.
The
bank
need
not
look
beyond
the
documents.
Who
has
cause
of
action
under
the
letter
of
credit?
v While
the
bank
is
bound
to
honor
the
credit,
it
is
the
beneficiary
who
has
the
right
to
ask
bank
to
honor
the
credit
by
allowing
him
to
draw
thereon,
and
not
the
buyer-‐applicant.
(Transfield
Philippines
v.
Luzon
Hydro
Corp.)
Functions
of
correspondent
banks
(a) Advising
or
notifying
bank
v Assumes
no
liability
except
to
notify
and/or
transmit
to
the
beneficiary
the
existence
of
the
letter
of
credit.
• A
notifying
bank
is
not
liable
to
pay
the
drafts
drawn
against
the
letter
of
credit.
• May
suggest
to
seller
its
willingness
to
negotiate,
but
this
alone
does
not
imply
that
the
notifying
bank
promises
to
accept
the
draft
drawn
under
the
documentary
credit.
(Hence,
the
mere
suggestion
to
negotiate
it
does
not
make
an
advising
bank
into
a
confirming
bank.)
• It
has
no
privity
to
the
sale
between
the
buyer
and
the
seller,
and
its
relationship
is
only
with
that
of
the
issuing
bank;
(b) Negotiating
bank
v Buys
or
discounts
a
draft
under
the
letter
of
credit
and
its
liability
is
dependent
upon
the
stage
of
the
negotiation:
• If
before
negotiation:
has
no
liability
with
respect
to
the
seller;
• If
after
negotiation:
a
contractual
relationship
will
then
prevail
between
the
negotiating
bank
and
the
seller.
(c) Confirming
bank
v Assumes
a
direct
obligation
to
the
seller
and
its
liability
is
a
primary
one
as
if
the
correspondent
bank
itself
had
issued
the
letter
of
credit.
Letter
of
credit
is
a
primary
obligation,
not
an
accessory
contract
v Letter
of
credit
constitutes
the
primary
obilgation,
and
not
merely
an
accessory
contract,
of
the
issuing
bank
separate
from
the
underlying
contract
that
it
may
support.
Consequently,
beneficiary
of
a
letter
of
credit
issued
to
secure
payment
of
a
loan
may
collect
on
its
entirety,
even
if
borrower
claims
it
made
partial
payments
already.
(Insular
Bank
v.
IAC)
Independence
principle
v Assures
the
seller
or
the
beneficiary
of
prompt
payment
independent
of
any
breach
of
the
main
contract
and
precludes
the
issuing
bank
from
determining
whether
the
main
contract
is
actually
accomplished
or
not.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 10
Special Commercial Laws
v The
bank
assumes
no
liability
or
responsibility
for
the
form,
sufficiency,
notes accuracy,
genuineness,
falsification
or
legal
effect
of
any
documents,
or
for
the
general
and/or
particular
conditions
stipulated
in
the
documents
or
superimposed
thereon,
nor
do
they
assume
any
liability
or
responsibility
for
the
description,
quantity,
weight,
quality,
condition,
packing,
delivery,
value
or
existence
of
the
goods
represented
by
any
documents,
or
for
the
good
faith
or
acts
and/or
omissions,
solvency,
performance
or
stnding
of
the
consignor,
the
carriers,
or
the
insurers
of
the
goods,
or
any
other
person
whomsoever.
Irrevocable
letter
of
credit,
cannot
be
revoked
except
by
express
permission
v During
the
lifetime
of
an
irrevocable
letter
of
credit,
it
cannot,
even
by
court
order,
be
cancelled
nor
modified,
nor
can
the
applicant
be
released,
without
the
express
permission
of
the
beneficiary
in
whose
favor
it
is
issued.
Otherwise,
it
would
destroy
its
irrevocability.
(Phil.
Virginia
Tobacco
Adm.
v.
De
los
Angeles)
Independence
principle,
rationale
v The
independence
principle
liberates
the
issuing
bank
from
the
duty
of
ascertaining
compliance
by
the
parties
in
the
main
contract.
v The
obligation
under
the
letter
of
credit
is
independent
of
the
related
and
originating
contract.
In
brief,
the
letter
of
credit
is
separate
and
distinct
from
the
underlying
transaction.
v The
argument
that
any
dispute
must
first
be
resolved
by
the
parties
through
negotiations
or
arbitration
before
the
beneficiary
is
entitled
to
call
on
the
letter
of
credit
in
essence
would
convert
the
letter
of
credit
into
a
mere
guarantee.
Independence
principle,
may
be
invoked
by
beneficiary
v To
claim
that
the
independence
principle
may
only
be
invoked
by
the
issuing
banks
would
render
nugatory
the
purpose
for
which
the
letters
of
credit
are
used
in
commercial
transactions.
v As
it
is,
the
independence
doctrine
works
to
the
benefit
both
of
the
issuing
bank
and
the
beneficiary.
Independent
nature
of
the
letter
of
credit,
2
kinds
(1) independent
in
toto
–
where
the
credit
is
independent
from
the
justification
aspect
and
is
a
separate
obligation
from
the
underlying
agreement
like
for
instance
a
typical
standby;
(2) independence
may
only
be
as
to
the
justification
aspect
like
in
a
commercial
letter
of
credit
or
repayment
standby,
which
is
identical
with
the
same
obligations
under
the
underlying
agreement.
Fraudulent
abuse
of
credit,
defense
against
independent
doctrine
v The
untruthfulness
of
a
certificate
accompanying
a
demand
for
payment
under
a
standby
credit
may
qualify
as
fraud
sufficient
to
support
an
injunction
against
payment.
Injunction
as
a
remedy,
when
granted
The
remedy
for
fraudulent
abuse
is
an
injunction
which
should
not
be
granted
unless:
(a) there
is
clear
proof
of
fraud;
(b) fraud
constitutes
fraudulent
abuse
of
the
independent
purpose
of
the
letter
of
credit
and
not
only
fraud
under
the
main
agreement;
and
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 11
Special Commercial Laws
(c) irreparable
injury
might
follow
if
injunction
is
not
granted
or
the
notes recovery
of
damages
would
be
seriously
damaged.
Effect
of
applicant
being
under
rehabilitation
proceedings
v The
effects
of
the
stay
order
issued
in
a
rehabilitation
proceeding
(corporate
rehabilitation)
which
enjoins
the
enforcement
of
all
claims
against
guarantors
and
sureties
“who
are
not
solidarily
liable
with
the
debtor,”
cannot
apply
to
the
letter
of
credit
issued
in
behalf
of
the
debtor-‐applicant
since
the
obligation
of
the
issuing
banks
under
the
letter
of
credit
is
primary
and
solidary.
Summary
of
rules
pertaining
to
letters
of
credit
(1) The
Uniform
Customs
and
Practice
may
apply
in
the
absence
of
any
particular
provisions
in
the
Code
of
Commerce.
Commercial
transactions
may
then
be
governed
by
usages
and
customs
generally
observed.
(2) An
advising
or
notifying
bank
does
not
incur
any
obligation
by
such
notification
and
is
only
bound
to
check
the
apparent
authenticity
of
the
letter
of
credit.
(3) Negotiating
bank
has
a
right
of
recourse
against
the
issuer
bank
and,
until
reimbursement
is
obtained,
the
drawer
continues
to
assume
a
contingent
liability
thereon.
(4) Between
seller
and
the
negotiating
bank
there
is
the
usual
relationship
existing
between
a
drawer
and
the
purchaser
of
drafts;
the
involved
bank
deals
only
with
documents
and
not
on
the
goods
described
in
those
documents.
Margin
fee
v Tax
on
the
sale
of
foreign
exchange
and
sale
being
consensual,
it
falls
due
as
soon
as
the
local
bank
opens
the
letter
of
credit.
(Pacific
Oxygen
Company
v.
Central
Bank)
Marginal
deposit
must
be
deducted
from
principal
obligation
v The
marginal
deposit
requirement
is
a
Central
Bank
now
measure
to
cut
off
excess
currency
liquidity
which
would
create
inflationary
pressure.
It
is
a
collateral
security
given
by
the
debtor,
and
is
supposed
to
be
returned
to
him
upon
compliance
with
his
obligation.
The
applicant
for
a
letter
of
credit
is
entitled
to
have
the
marginal
deposit
first
deducted
from
the
principal
obligation
under
the
letter
of
credit
and
for
interest
to
accrue
only
on
the
balance,
and
such
deposit
is
supposed
to
be
returned
upon
the
buyer’s
compliance
with
his
obligation,
since
compensation
takes
effect
by
operation
of
law.
(Abad
v.
Court
of
Appeals)
[Bance]
This
speaks
of
the
practice
of
banks
where
the
applicant,
in
opening
a
letter
of
credit
is
also
required
to
pay
a
marginal
deposit.
As
the
deposit
is
owned
by
the
applicant-‐buyer,
in
cases
where
he
cannot
pay
the
obligation,
the
same
should
be
deducted
from
the
principal
amount.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 12
Special Commercial Laws
notes LC-TR Transaction
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 13
Special Commercial Laws
notes
Letter
of
credit
v.
Trust
Receipt
v A
letter
of
credit
is
a
separate
document
from
a
trust
receipt.
While
the
trust
receipt
may
have
been
executed
as
security
on
the
letter
of
credit,
still
the
two
documents
involve
a
different
undertaking
and
obligation.
v Consequently,
a
claim
in
the
letter
of
credit
making
a
party
solidarily
liable
therein
cannot
be
extend
to
apply
to
the
trust
receipt.
(Bank
of
Commerce
v.
Serrano)
[Bance]
Letter
of
Credit
v.
Trust
Receipt
(Bank
v.
Serrano)
Letter
of
Credit
Trust
Receipt
Nature
Engagement
of
a
bank
or
other
Entruster
(bank)
who
holds
persons
made
at
the
request
of
absolute
title
or
security
the
customer
that
the
issuer
will
interest
over
certain
goods
honor
draft
or
other
demands
releases
the
same
to
an
for
payment
upon
compliance
entrustee
who
executes
a
with
conditions
specified
in
the
trust
receipt
binding
himself
credit.
to
hold
the
goods
in
trust
and
to
sell
these
goods
or
return
the
proceeds.
Role
of
bank
Substitutes
its
own
promise
to
“Lends”
capital
to
allow
buyer
pay
for
the
promise
to
pay
of
to
purchase
goods,
and
by
one
of
its
customers
who
in
turn
legal
fiction,
owns
these
promises
to
pay
the
bank
the
goods
or
holds
a
security
amount
of
funds
mentioned
in
interest
over
them.
the
letter
of
credit
plus
credit
or
commitment
fees
mutually
agreed
upon.
[Bance]
Technically
here,
the
bank
plays
a
middleman
between
[Bance]
Technically
here,
the
a
seller
who
might
be
reluctant
to
bank
is
a
lender
–
lending
part
with
his
goods
and
a
buyer
capital
to
the
buyer.
The
TR
who
might
be
reluctant
to
part
was
merely
created
to
further
with
his
money
and
may
have
no
protect
the
interest
of
the
credit
facility
to
send
such
a
huge
bank
by
providing
civil
and
sum
to
the
seller.
criminal
sanctions
for
its
violation.
Persons
involved
3:
Buyer-‐applicant,
Seller-‐ 2:
The
entruster
(bank)
and
beneficiary
and
the
Issuing
Bank
the
entrustee
(buyer).
Letter
of
Credit
v.
Guarantee
v Unlike
in
a
guarantee,
the
settlement
of
a
dispute
between
the
parties
is
not
a
pre-‐requisite
for
the
release
of
funds
under
a
letter
of
credit.
(Transfield
Philippines
v.
Luzon
Hydro
Corp.)
Guarantee
Letter
of
credit
Contract
of
guaranty
depends
upon
the
Independent
of
the
contract
between
the
primary
contract
seller
and
buyer.
(Independence
principle)
Guarantor’s
obligation
is
merely
In
an
irrevocable
credit,
the
bank
collateral
and
arises
upon
upon
default
undertakes
a
primary
obligation
of
the
person.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 14
Special Commercial Laws
notes Commercial
credits
v.
Standby
Credits
Commercial
Credits
Standby
Credit
Involve
the
payment
of
money
under
a
The
credit
is
payable
upon
certification
of
contract
of
sale.
The
credits
become
a
party’s
non-‐performance
of
the
payable
upon
the
presentation
by
the
agreement.
seller-‐beneficiary
of
documents
that
show
he
has
taken
affirmative
steps
to
comply
with
the
sales
agreements.
[Bance]
So
this
is
more
like
payment
for
[Bance]
More
like,
a
fee
to
penalize
a
goods
conditioned
upon
the
performance
party’s
non-‐performance
of
an
act
required,
of
an
act,
i.e.
shipping
the
goods
and
payable
upon
proof
of
said
non-‐ presenting
complete
documents
to
performance,
i.e.
failure
to
finish
the
correspondent
bank.
project
on
time.
This
is
a
good
setup
for
instead
of
merely
stipulating
a
penalty
in
the
main
contract
and
taking
years
in
litigation
to
claim
the
same,
the
standby
credit
allows
for
a
quicker
procedure
and
with
no
judicial
interference.
Third
person
(seller-‐beneficiary)
must
Third
person
(beneficiary)
must
present
present
documents
tending
to
show
that
documents
tending
to
show
that
the
he
has
performed
the
contract.
applicant
has
not
performed.
Beneficiary
must
certify
that
his
obligor
has
not
performed
the
contract.
Bance, Shayne Amor
Xavier University – Ateneo de Cagayan, Class
of 2017 Commercial Law 15