جستجوی مقالات مرتبط با کلیدواژه « انتقال اعتبار » در نشریات گروه « فقه و حقوق »

This article discusses Electronic Funds Transfer (EFT) based on an assignment framework. Payment order in EFT is considered to be an assignment offer. If the Fund Transfer is considered on this basis, it must contain conditions for the emergence of an assignment and its legal consequences. In this respect, debt or credit as subject matter of this agreement is available in most cases of EFT, even if there is no debtor and creditor relationship between the issuer of the payment order and beneficiary. In terms of intent for creation an assignment, since the issuer is willing to transfer funds that is being holding by bank and there is no need for debtor’s consent and there is no fiduciary relationship between them, the legal relationship created between the issuer and the bank has to be interfered as an assignment. As regards consequences, by accepted this idea, the right of the bank to reject Fund Transfer order can easily be interpreted. Having said that, what a bank does on order after receipt of payment order should not be considered to be the acceptance of the offer, because this is a regular and preliminary process. Since the doctrine is not able to respond to some situations for Fund Transfer, including Fund Transfer to another account of the issuer, it has been subject to some criticisms.

Payment order in EFT can be a negotiable instrument in two ways; it be as such an instrument based on custom and regulation meaning that whether it should be considered as new instrument or incorporates in one of the current instruments. In light of Iranian legal system and against Common law it is not acceptable that a new negotiable instrument can be created by custom because some characterizes of these instrument are opposite of the general rules or third party rights while Acts or regulations can only do it. About the second situation, creating a new instrument by regulation must be done by taking a special name, stating its conditions, characterizes and results. Although the related regulations like UCC or By-law for Issuing a Payment Order and Fund Transfer have tried to mention these requirements notwithstanding, under Common Law no custom or rule confers the character of negotiability to payment order and therefore we cannot consider it as a new negotiable instrument. In front of this, In Iranian law payment order is a special instrument having owns conditions and results in the light of the given By-law. Therefore the obligation created by this instrument is definite and after having issued and accepted by debtor who is bank, it will oblige the bank to perform. This in turn, brings this principle in our mind: unacceptable defense principle. In any way, we cannot ignore some bad consequences of this idea that led us to reject this framework for payment order.

In a documentary credit relationship، the person for the favor of whom the credit is openned، is not necessarily the last supplier. In fact، he hopes to buy goods from the last supplier and deliver it to the buyer. Transfer of credit is the third alternative rather than the beneficiary of the credit. It gives the first beneficiary right to benefit from differce of transferred credit and original credit prices. It also allows him/her to assign his/her obligations about that credit document delivery. There is disagreement about the legal nature of transfer of credit. The group argued that the benefits of credit can be transferred to a third party conditionally، so the legal nature of transfer is similar to the assignment of benefits. Others believe that as transfer of credit take places، the original legal relation will nullify، and a new relation between the second beneficiary and the transferring bank will be created. So، they believe that the legal nature of transfer of credit is more likely to novation. Various studies’ assessment shows that، despite of some differences between novation and transfer of credit، legal nature of the former is very similar to novation rather than other legal establishments.

At first glance، the transfer of credit is a legal action taken between a sender and a receiver of credit through which the receiver is obligated to transfer the monetary value of the payment order to the beneficiary in accordance with the instruction received from the transferor. The sender is also obliged to transfer that money، in addition to the cost of transfer، to the other party. Although، on a primary analysis، a credit transfer is more assimilated to a kind of payment instrument that facilitates transfer of money، it might، on a second consideration، seem to be a sort of payment method. A careful scrutiny of this legal institution proves that none of the current traditional contractual forms could properly illustrate the true nature، features and function of this legal entity. This article shows that the nature of this legal entity could well be justified as a non-defined، innominate contract (Aghd-e Gheir-e Moayyan) subject to Article 10 of the Iranian Civil Code. An attempt to accommodate this contract in the form of a defined and specific contract (Adhd-e Moayyan) stems from the traditional view held by certain Islamic jurists who believe in the non-binding nature of non-defined innominate contracts، an idea which has surely no place in the existing Iranian legal system.

Fund transfer through banking system is a common device to fulfill the contractual obligations. This process usually starts with the debtor`s order and finishes with intercession of several banks when the fund is deposited to the creditor´s account. The process of fund transfer has several important aspects legally such as the method of performing the process and its obstacles، and the bank´s deadline for exercising the payment order; however، determining the exact time that the process is finished has significant importance because in that time، the obligated will be discharged and his/her purpose of starting this process will be reached. According to the UNCITRAL model law on international credit transfers [1992]، when the beneficiary bank accepts the payment order، the process will finish، and the issuer will be discharged. Based on the current banking law that beneficiary´s bank is responsible for fund transfer to the beneficiary´s account، this idea seems acceptable in Iran.