Page:Harvard Law Review Volume 32.djvu/37

LETTERS OF CREDIT 3 four years is bound presently to bring to our courts a variety of perplexing problems. A study of the English and American decisions bearing on the subject discloses much uncertainty and ambiguity of construc- tion and interpretation. The familiar circular letter of credit is an ofifer addressed to given addressees, or to the world in general, agreeing to be bound by their acceptance of the offer within its terms and provisions. So we shall find this theory of offer and acceptance made the ratio decidendi in cases where other elements clearly should be considered. Other decisions give these letters the attributes and characteristics of negotiable instruments, and so reach conclusions not justified by the law or the facts. Others treat them as contracts of guaranty or of money held to the use of another, or money had and received. Others treat them as con- tracts between two parties for the use and benefit of a third. Others grant reUef on the basis of estoppel or by upholding the customary commercial practice and interpretation of the parties as part "of the substantive law merchant. Obviously it is important, both commercially and juristically, to determine if possible a sound legal theory applicable to these cases. This is so, not only in order to avoid confusion where confusion is unnecessary, but to enable the commercial world to deal with more confidence and safety with this instruLment of trade and finance which it has devised. A variety of practical questions of far reaching import to the commerical world impend upon the legal theory applied to the construction and interpretation of these letters. For instance, if we are to proceed on the theory of offer, the question of revocability must be determined differently than if we proceed on the theory of money had to use. If such letters are to be construed, for example, as guaranties, their practical feasibility under our law is much hampered. So that on the legal theory applied by the courts, whatever it may be, will depend not only the standard form these letters should take, but also the ulti- mate disposition of such practical questions, constantly arising and sure to be litigated as, assignability; revocation; construction of the terms of the contract as to sale and delivery; the relation of the letter to the contract of sale and the extent to which such con- tract of sale, expressly or by implication, should be or is part of the letter; failure of complete performance of the contract of sale