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Law, pledges, guarantees and letters of credit

Author: Poh, Chu Chai Publisher: Butterworth, 1999.Edition: 4th ed.Language: EnglishDescription: 911 p. ; 24 cm.ISBN: 0409999938Type of document: BookBibliography/Index: Includes index
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Book Asia Campus
Archives
Print K700 .P64 1999
(Browse shelf)
900095286
Available 900095286
Total holds: 0

Includes index

Digitized

CONTENTS Preface Table of Cases Table of Statutes Chapter One v XX xli G O O D S AS SECURITY I. Pledge of Goods A. Simple Pledge is Outside the Purview of the Bills of Sale Act B. Documents Accompanying a Pledge of Goods C. Issue of Receipts D. Agreement Giving Security Over Goods Transfer of P~ssession A. Failure by Pledgor to Transfer Possession of Goods B. Actual Transfer of Possession C. Constructive Transfer of Possession D. Symbolic Transfer of Possession E. Goods Embodied in a Trust Receipt Release of Property to the Owner for Realization A. Pledgor Holding Goods in Ti'ust for a Pledgee B. Goods Released for a Limited Purpose C. Goods Released Under a Trust Receipt Letter of Lien A. Bills of Sale Act B. Provisions Under the Companies Act A Pledgee's Power of Sale A. When a Power of Sale Arises B. Pledgee's Implied Power of Sale Mortgage of Shares A. Mortgage of a Chose in Action B. Deposit of Shares Constituting an Equitable Mortgage C. Deposit of Negotiable Securities D. Accepting Convertible Securities E. Fraudulent Pledge of Shares F. Release of Security Mortgagee's Power of Sale A. Morteaeee's I m ~ l i e d Power of Sale 11. 111. IV. v. VI. VII. B. Deposit of Shares Accompanied by Signed Blank Transfers C. Exercising the Power of Sale Chapter Two LIFE ASSURANCE POLICIES AS SECURITY I. Types of Life Policies Assignment of Life Policies 11. A. Legal Assignment B. Incomplete Assignment C. Equitable Assignment 111. Problems Related to Taking a Pledge or an Equitable Assignment A. Prior Interests B. Suing on a Policy IV. Taking a Legal Assignment of a Policy v. Matters Affecting the Security of an Assignee A. Avoidance of $Policy by an Insurer B. Non-Payment of Premiums C. Assured Divesting His Own Interest Under the Policy VI. Section 73 of the Conveyancing and Law of Property Act A. Policies Covered by Section 73 B. Persons Covered by Section 73 VII. Life Assurance Policies and Suicide A. Legal Effect of the Suicide of an Assured B. Evolution of Suicide Clauses C. Suicide Clause Covering the Interest of an Assured D. Section 73 of the Conveyancing and Law of Property Act E. The English Suicide Act 1961 F. Position in Singapore VIII. Making a Claim Under a Life Assurance Policy A. Person Named as a Beneficiary B. Right of a Beneficiary to Sue Insurer C. Making Payment to a Proper Claimant D. Marriage of an Insured E. Public Policy Considerations Chapter Three LEGAL NATURE OF A GUARANTEE I. Characteristics of a Guarantee A. Guarantee Defined 11. 111. IV. v. VI. B. Formalities C. Person Who Pledges Security for the Debt of Another D. Guarantor Assumes Secondary Liability E. Guarantor Under No Liability F. Proof of Damage Guarantee and Indemnity Distinguished A. Distinguishing Features B. Looking at the Entire Agreement C. Direct Interest in Principal Transaction D. Where Interest is Incidental Contract of Indemnity A. No Legal Requirement for Writing B. Implied Indemnity C. Assuming Primary Liability D. Extent of Liability Under an Indemnity Construction of Guarantees Terms of a Guarantee A. Non-Compliance with the Terms of a Guarantee B. Event Specified in a Guarantee Consideration for a Guarantee A. Absence of Consideration B. Consideration Need Not be Stated C. Past Consideration Chapter Four VITIATING FACTORS IN A GUARANTEE I. Plea of Non Est Factum A. Deception as to the Nature of the Document Signed B. Fraud Inducing a Fundamental Mistake C. Documents Signed in Blank D. Failure to Exercise Reasonable Care E. Experience of a Defendant 11. Duty of Disclosure A. No General Duty of Disclosure B. Circumstances Which Do Not Require Disclosure C. Duty to Correct Misstatements D. Duty to Disclose Unusual Facts Chapter Five UNDUE INFLUENCE I. Doctrine of Undue Influence 11. Actual Undue Influence A. Exerting Undue Pressure B. No Necessity to Show Relationship of Confidence C. Unconscionable Bargain D. Economic Duress 111. Abuse of Fiduciary Position A. Association for a Common Purpose B. Married and Engaged Couples C. Relationship Between Siblings D. Abuse of Confidence E. Burden of Proof IV. Presumption of Undue Influence A. Relationships Raising a Presumption of Undue Influence B. Relationship of Trust and Confidence C. Burden of Proof D. Parent and Child E. Husband and Wife F. Religious Organisations and Spiritual Advisers G. Influence of an Adviser H. Solicitor and Client v. Malaysian Position A. Actual Undue Influence B. Presumption of Undue Influence Finding the Basis for the Doctrine VI. of Undue Influence A. Inequality of Bargaining Power B. Principle of Inequality of Bargaining Power Rejected VII. Unfair Advantage A. Cases of Presumed Undue Influence B. Cases of Actual Undue Influence VIII. Bank Rendering Advice A. No Duty to Give Advice B. Liability for Negligent Advice Customer Acting as an Agent for a Bank IX. A. Principal Debtor Obtaining a Guarantor's Consent B. Obtaining a Guarantor's Consent Through a Third Party C. Knowledge of Bank Immaterial Customer Not Acting as an Agent for the Bank X. A. Sending a Guarantee Directly to a Guarantor XI. XII. B. Guarantor's Assent Not Obtained Through a Principal Debtor Creditor Having Constructive Notice A. Circumstances to Put a Creditor on Inquiry B. Onus of Proof C. Transaction Non-Beneficial to Guarantor D. Setting Aside Transaction Rebutting the Presumption of Undue Influence A. Obtaining Independent Advice B. Adviser Must be Acquainted with the Full Facts C. Advising a Guarantor to Obtain Independent Advice D. Guarantor Using Own Solicitor E. Bank Using a Principal Debtor's Solicitor F. Bank Using Its Own Solicitor G. Presence of Exceptional Circumstances h Chapter Six MATTERS AFFECTING A GUARANTOR'S INTERESTS I. Acts Prejudicial to the Rights of a Guarantor Variation in the Contract Between a Creditor 11. and a Principal Debtor A. Variation Made Without the Assent of a Guarantor B. Altering the Terms of a Guarantee C. Variation Made with the Assent of a Guarantor D. Insubstantial Variation 111. Release of Principal Debtor A. Giving a Principal Debtor an Absolute Discharge B. Release by Operation of Law C. Guarantor Assenting to the Release of a Principal Debtor D. Creditor Reserving His Rights Against a Guarantor Iv. Irregular Dealings Between a Creditor and Debtor v. Giving Time to a Principal Debtor A. Position of a Guarantor Prejudiced B. Joint Debtor Not Affected by the Giving of Time VI. Opening a New Account for a Principal Debtor VII. Failure bv a Creditor to Take Securitv A. Security Intended for Creditor and Guarantor B. Security Intended Only for Creditor VIII. Release of Security Belonging to a Principal Debtor IX. Failure to Insure X . Creditor Obtaining Additional Guarantee XI. Joint and Several Guarantee A. Distinction Between a Joint and a Several Guarantee B. Failure by All Guarantors to Sign C. One of Several Guarantors Assuming a Lesser Liability D. Forgery of a Guarantor's Signature E. Releasing a Guarantor XII. Termination of a Guarantee A. Guarantor's Right to Terminate Guarantee B. Notice to ~ e r h i n a t Guarantee e C. Death of a Guarantor Chapter Seven SOME COMMON TERMS IN A GUARANTEE Continuing Guarantee I. A. Guarantee Given for a Specific Loan B. Covering the Past Liability of a Principal Debtor C. Issue of Consideration D. Future Liability of a Principal Debtor Guaranteeing the Overdraft of a Principal Debtor 11. 111. Term Allowing for Variation of Securities and Extension of Time Term Allowing for Increase of Credit IV. to a Principal Debtor v. Term Allowing for Further Security to be Taken A. Taking Additional Guarantees B. Creditor Taking Additional Security Term Allowing for Release of Principal Debtor VI. VII. Term Allowing for Variation of Interest Rate VIII. Liberty to Refrain From Enforcing Security Right of Set-Off and Counterclaim IX. Conclusive Evidence Clause X. A. Conclusive Evidence Clause Not Contrary to Public Policy B. Certificate Must be Issued in Good Faith C. Guarantor Bound by Certificate D. Certifying a Debt Owed at an Earlier Date E. Circumstances Rendering a Certificate Non-Binding Chapter Eight ENFORCEMENT OF GUARANTEE I. Obtaining Judgment on a Guarantee Demand for Payment II. A. No Provision for Notice of Demand B. Term Requiring Notice m. Notice of Demand A. Form of Notice B. Amount Demanded C. Issuing a Fresh Notice IV. Service of Notice A. Mode of Service B. Sending a Notice by Post C. Ordinary and Registered Post D. Sending a Notice to a Debtor's Place of Business E. Guarantor Also Made a Principal Debtor F. Notice Given by a Creditor's Agent v. Limitation of Action A. Guarantee Made Payable on Demand B. Interest Element VI. Principal and Interest A. Limit Specified in an Overdraft B. Payment of Interest C. Post-Judgment Interest Chapter Nine GUARANTOR AND CREDITOR I. Right of Set-Off and Counterclaim A. Commercial Object of a Guarantee B. Outcome of Principal Debtor's Counterclaim C. Creditor's Negligence in Selling Security 11. Termination of Contract Between Principal Debtor and Creditor A. Principal Debtor's Breach of Contract B. Liability Incurred by Debtor Before Termination of Contract Chapter Ten SECURITY PROVIDED BY A PRINCIPAL DEBTOR Interests Competing for the Security I. 11. 111. I. V Interests of a Creditor A. Creditor Not Obliged to Proceed Against Security B. Where it is Not Possible to Proceed Against the Security C. Proceeding Against Principal Debtor and Guarantor Simultaneously D. Shortfall in the Sale of Security E. Losses Arising From a Creditor's Failure to Enforce Security Interests of a Guarantor A. Position in Singapore B. Position in Malaysia C. Security to be Used to Liquidate Principal Debt D. Creditor Obliged to Hand Over Security E. Creditor's Right to Security Lapses F. Guarantor's Right Subject to Contrary Agreement G. Principle Equally Applicable to Negotiable Instruments Sale of Securities A. Creditor Under No Duty to Sell Security B. Creditor May Choose Time to Sell Security C. Duty of Care in Selling Security Chapter Eleven GUARANTOR AND PRINCIPAL DEBTOR Guarantor's Right to be Exonerated I. by a Principal Debtor A. Right Arises the Moment Principal Liability is Incurred B. Right Not Dependent on Creditor's Demand C. Creditor Calling Upon Guarantor to Make Payment 11. Demand by Creditor Made a Condition Precedent to Guarantor's Liability 111. Right to be Exonerated Not Available in a Contract of Insurance IV. Principal Debtor Has No Right to be Indemnified by a Guarantor v. Guarantor Who Takes Security From a Principal Debtor VI. Principal Debtor's Rights Against Creditor Chapter Twelve RIGHTS BETWEEN GUARANTORS I. A Guarantor's Right to Contribution A. Basis for Right to Contribution B. Right to Contribution After Payment II. Principal Debtor Has No Right of Contribution 111. Liability Must be for the Same Debt IV. Securities Acquired by a Guarantor V. Securities Provided by Co-Guarantors Chapter Thirteen PERFORMANCE BONDS 1. Nature of a Performance Bond A. Similarities with Letters of Credit B. Cash Principle n. Applicable Principles A. Principles Derived From Letters of Credit B. Non-Intederence with Bank's Payment Obligations Banks Not Concerned with the Underlying Contract A. Disputes Over Underlying Contract B. Breach of Underlying Contract IV. Demand for Payment Under a Performance Bond A. Doctrine of Strict Compliance B. Call Based on Default v. Allegation of Fraud VI. Restraining a Beneficiary From Drawing on a Bond A. Principle of Non-Interference B. Shadow of Doubt C. Position in Malaysia D. Principle Reaffirmed in Singapore E. Beneficiary Acting Fraudulently F. Fraud in Relation to Underlying Contract m. Beneficiary's Duty to Account 7' A. Where Bond is Not Based on Default B. Bond Based on Default WII. Letters of Comfort 577 577 578 580 580 582 588 588 590 595 595 607 616 618 618 620 627 631 634 637 641 641 643 647 m. 1 1 ' '"z Chapter Fourteen LETTERS OF CREDIT ' r . h: The Need for Letters of Credit Outline of a Letter of Credit Transaction A. Contract of Sale B. Operation of a Letter of Credit 111. IV. v. VI. VII. C. Relationships Arising Under a Letter of Credit Uniform Customs and Practice for Documentary Credits Nature of a Letter of Credit A. Letter of Credit Defined B Three Basic Assumptions Applicable to a Letter of Credit Types of Credit A. Revocable Credit B. Irrevocable Credit C. Unconfirmed and Confirmed Letters of Credit D. Forms of Payment Negotiable Letter of Credit A. Persons Entitled to Negotiate Credit B. Nominating a Negotiating Bank C. Exercising Right of Recourse D. Negotiatingban Unconfirmed Letter of Credit Transferable Letter of Credit A. Arrangement for Credit to be Made Transferable B. Right to Transfer Credit Chapter Fifteen BUYER AND SELLER Payment by Way of a Letter of Credit I. 11. Buyer's Failure to Establish Credit 111. Time for Opening Credit A. When Time Has Been Agreed B. When No Time is Specified C. Waiver IV. Agreement on the Type of Credit to be Effected A. Waiving a Breach of Contract B. Waiver and Variation C. Terms of Letter of Credit Left to be Settled V . Nature of Payment by Letter of Credit A. Letter of Credit Constitutes Conditional Payment B. Failure by Seller to Comply with the Terms of a Letter of Credit VI. Failure of Issuing Bank VII. When a Confirming Bank Refuses Payment Chapter Sixteen BUYER AND THE ISSUING BANK Principles Governing Relationship I. A. Letter of Credit Separate From Underlying Contract B. Banks Only Deal with Documents C. Non-Interference with Bank's Payment Obligations Breach of Contract of Sale 11. A. Bank Not Concerned with Breach of Underlying Contract B. Breach of Underlying Contract Not a Valid Ground for Stopping Payment C. Buyer Refusing to Accept Documents Tendered 111. Allegation of Fraud IV. Decisions Concerning Performance Bonds A. Impact of Performance Bonds B. Principleq Applicable to Performance Bonds C. Banks Not Concerned with Underlying Contract of Sale D. Compliance with the Terrns of a Bond E. Bond Subject to Conditions F. Balance of Convenience G. Allegation of Fraud H. Restraining a Beneficiary From Drawing on a Bond v. Burden of Proof A. Personal Involvement of Beneficiary B. Clear Evidence of Fraud Required C. Restraining a Beneficiary From Drawing on a Credit When Fraud is Established VI. A. Beneficiary Acting Fraudulently B. Applicant and Beneficiary Acting in Collusion VII. Banker's Right of Set-Off Chapter Seventeen SELLER AND THE INTERMEDIARY BANK I. Revocable Letter of Credit 11. Irrevocable Letter of Credit A. Acceptance of Offer by Beneficiary B. Terms of the Offer C. Dispute Between Buyer and Seller D. Payment Made to a Wrong Party E. Bank Assisting Buyer to Obtain Goods F Non-Interference with a Bank's . Payment Obligations G. Payment Made Against Fraudulent Documents Chapter Eighteen ISSUING AND INTERMEDIARY BANKS I. Advising Bank 11. Confirming Bank 11 1 . Negotiating Bank A. Bank Specified B. Deadline for Negotiation of Credit Liabilities and Responsibilities of Banks IV. V. Duty to Examine Documents A. Bank Must Examine Documents with Reasonable Care B. Instructions Given Under the Credit Must be Clear C. Documents Which Do Not Comply with the Terms of a Credit D. Extension of Expiry Date E. Reasonable Time to Examine Documents F. Waiver G. Payment Under Reserve H. Rejecting a Tender of Documents Chapter Nineteen TENDER OF DOCUMENTS Documents to be Tendered Under I. a Letter of Credit A. Original and Copies of a Document B. Transport Documents C. Bill of Lading D. Insurance Documents E. Commercial Invoice F. Description of the Goods in a Commercial Invoice G. Description of the Goods in the Other Documents H. Certificate of Inspection I. Certificate of Analysis 11. Tender of Fraudulent Documents A. Bank's Responsibility Towards Applicant of Credit 111. B. Bank's Responsibility Towards Beneficiary of Credit Tender of Documents Which Have Been Altered A. Nature of Alteration 8. Alteration of the Date of Shipment Index

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