O.C.G.A.

O.C.G.A. § 11-5-107 (2019)

Confirmer, nominated person, and adviser

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) A confirmer is directly obligated on a letter of credit and has the rights and obligations of an issuer to the extent of its confirmation. The confirmer also has rights against and obligations to the issuer as if the issuer were an applicant and the confirmer had issued the letter of credit at the request of and for the account of the issuer.

(b) A nominated person who is not a confirmer is not obligated to honor or otherwise give value for a presentation.

(c) A person required to advise may decline to act as an adviser. An adviser that is not a confirmer is not obligated to honor or give value for a presentation. An adviser undertakes to the issuer and to the beneficiary accurately to advise the terms of the letter of credit, confirmation, amendment, or advice received by that person and undertakes to the beneficiary to check the apparent authenticity of the requirement to advise. Even if the advice is inaccurate, the letter of credit, confirmation, or amendment is enforceable as issued.

(d) A person who notifies a transferee beneficiary of the terms of a letter of credit, confirmation, amendment, or advice has the rights and obligations of an adviser under subsection (c) of this Code section. The terms in the notice to the transferee beneficiary may differ from the terms in any notice to the transferor beneficiary to the extent permitted by the letter of credit, confirmation, amendment, or advice received by the person who so notifies.

History

Code 1981, § 11-5-107, enacted by Ga. L. 2002, p. 995, § 1.

Annotations

Law reviews. For annual survey article discussing

letter of credit issues, see 46 Mercer L. Rev. 71 (1994).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Article 5 are included in the annotations for this Code section. A bank may confirm credit issued by nonbank, thus becoming primarily liable on it. Barclays Bank v. Mercantile Nat’l Bank, 481 F.2d 1224, 1973 U.S. App. LEXIS 8975 (5th Cir. 1973), cert. dismissed, 414 U.S. 1139, 94 S. Ct. 888, 39 L. Ed. 2d 96, 1974 U.S. LEXIS 1523 (1974)

(decided under former Code 1933, § 109A5-107). Language precluding denial of purpose to act as a “confirming bank.” - See Barclays Bank D.C.O. v. Mercantile Nat’l Bank, 339 F. Supp. 457, 1972 U.S. Dist. LEXIS 14691 (N.D. Ga. 1972), aff’d, 481 F.2d 1224, 1973 U.S. App. LEXIS 8975 (5th Cir. 1973) (decided under former Code 1933, § 109A-5-107).

RESEARCH REFERENCES Am. Jur. 2d. 50 Am. Jur. 2d, Letters of Credit and Credit Cards, §§ 80, 81.

U.L.A. Uniform Commercial Code (U.L.A.) § 5107.

Notes of Decisions

Cited in 2 cases, 1993–1994 · leading case: Dibrell Bros. Int'l S.A., Plaintiff-Counter-Defendant-Appellant v. Banca Nazionale Del Lavoro, Defendant-Counter-Claimant-Appellee, 38 F.3d 1571 (11th Cir. 1994).

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Dibrell Bros. Int'l S.A., Plaintiff-Counter-Defendant-Appellant v. Banca Nazionale Del Lavoro, Defendant-Counter-Claimant-Appellee, 38 F.3d 1571 (11th Cir. 1994). · cites it 2× “A silent confirmer may owe a contractual duty to the beneficiary who sought the engagement, but no statutory duty is owed to the issuing bank under *1581 O.C.G.A. § 11-5-107 and § 11-5-109. Also, the silent confirmer has no statutory right of reimbursement from the issuer.”

Banca Nazionale Del Lavoro v. SMS Hasenclever, 439 S.E.2d 502 (Ga. Ct. App. 1993). · cites it 4× “SMS Hasenclever, GmbH of Dusseldorf, Germany (“SMS”) filed an action against Banca Nazionale Del Lavoro (“BNL”) for wrongful dishonor of letters of credit issued by the Central Bank of Iraq (“CBI”) and confirmed by BNL’s promise to honor the letters of credit pursuant to OCGA §…”

— 11-5-107(2) — 1 case

Dibrell Bros. Int'l S.A., Plaintiff-Counter-Defendant-Appellant v. Banca Nazionale Del Lavoro, Defendant-Counter-Claimant-Appellee, 38 F.3d 1571 (11th Cir. 1994). “A silent confirmer may owe a contractual duty to the beneficiary who sought the engagement, but no statutory duty is owed to the issuing bank under *1581 O.C.G.A. § 11-5-107 and § 11-5-109. Also, the silent confirmer has no statutory right of reimbursement from the issuer.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.