اشتراط الاعتماد المستندي للتسوية التجارية ” دراسة مقارنة “

Requirement of documentary credit for commercial settlement "Comparative study"

Abstract

The requirement of settlement by documentary credit plays an important and fundamental role in the international sales contract concluded between the seller and the buyer, as a unique tool for settling payments arising from this international contract, which is characterized by the spatial and geographical difference of the parties to the contractual relationship (the exporter and the importer), which may lead to a conflict of their contractual interests arising from this contract , This process begins with the sales contract, as the seller stipulates that the price be paid in exchange for submitting the documents stipulated in the sales contract to a bank that undertakes the process of opening the documentary credit under certain conditions in favor of the seller. This settlement brings benefits to the seller and buyer that cannot be achieved by any other means.
Considering that the bank’s pledge is issued before the seller begins implementing his contractual obligations, in addition to receiving the price immediately after implementing these obligations, while any other means does not give him a complete guarantee because he must begin implementing his contractual obligations before he obtains any guarantee.
At the same time, legal protection is provided to the buyer because he does not pay the price through the bank unless the seller presents documents proving the proper implementation of his obligation, especially since it enables him to dispose of the goods through his possession of documents proving ownership of these goods subject to the contract once he pays their price.
Because the bank will transfer these documents to it as soon as it receives them from the seller and they conform to the conditions stipulated in the instructions of the orderer to open the documentary credit, and thus the protection provided by this settlement is much better than the protection provided by traditional methods of meeting the price.
Despite the effective importance played by the settlement stipulation in the aforementioned contract, this study devoted a large part of research and detail between the folds of the texts and what was dealt with in the opinions of legal jurisprudence, fulfilling that role and paying great attention first to defining the concept of the settlement stipulation by reviewing the definitions and opinions that were given regarding it. Clarifying its terminological meaning, whether in the context of the condition in its general sense or in the context of the documentary credit, Then determining its legal nature in the contract is the basis for the impact that this definition will have on the life of the international contract and what it will lead to. When referring to the relevant legal texts, perhaps they will help us in defining them accurately, but we find them devoid of an explanation of that nature, which has led to a multiplicity and difference of opinions. Legal jurisprudence in this regard, as some of them pointed out that the stipulation is a pillar of the basic international contract.
While others indicated that this condition is considered a condition in this contract, and as a result it was concluded that it is considered a condition associated with the basic contract in accordance with the foundations and arguments that were relied upon in this result, especially since this nature entails provisions that were addressed in the last chapter of the thesis, and thus it ended. With the conclusions and recommendations.