عنوان مقاله [English]
Bank guarantee is one of the most efficient financial instruments that what is the importance of its role in the process of signing the contracts and transactions is the independence of the underlying contract between the beneficiary and principal and the contract for issuing the guarantee between guarantor and principal. Due to these characteristics, if the principal fails to perform his obligations in underlying contract, Beneficiary can demand guarantee without having to prove negligence. During the demand of guarantee it’s possible to be resorted to set-off by principal and guarantor. In view of the above-mentioned relations between principal and guarantor, principal and beneficiary and guarantor and beneficiary and set-off that prevent from prolongation of mutual payments, it must see that in which relationship can be relied on set-off against beneficiary? According to the concept of independence guarantee, the only guarantor can invoke to set-off for mutual demands against beneficiary and then to be innocent of his debts. The same approach was also adopted in international and domestic regulations.
14. Berger,klaus Peter. (2005), set-off-in:ICC Bull.(special supplement). at 17 et seq.
15.Bertrams, Roeland. (2004), bank Guarantees in International Trade. Hague: Kluwer Law international.
16.Davidson, Alan. (2010),”Fraud and the UN Convention on Independent Guarantees and Standby Letters of Credit”. International Commercial Law, Vol.1, Issue.1.
17. Davidson, Alan.(2012),”Unconscionability in Letters of Credit and Demand
Guarantee Transactions.”International Journal of Technology Policy and Law, Vol.1.
18. Hsin Hsu, Chung.(2006),”the Independence of Demand Guarantees, Performance Bonds and Standby Letters of Credit”. National Taiwan University Law Review.
19. Johns, Roger j- Blodget, Mark S. (2011),”Fairness at the Expense of Commercial Certainty: The International Emergence of Unconscionability and Illegality as Exceptions to the Independence of Letters of credit and Bank Guarantees.” Northern Illinios University Law Review, Vol.31.
20. Kelly-louw, Michelle. (2009), Limiting Exceptions to the Autonomy Principle of Demand Guarantees and Letters of Credit. University of South Africa.
21. Pierce, Anthony. (1993), Demand Guarantee in International Trade. 1ed, London: Sweet & Maxwell.
22. saleeby, Ramsey.(2010),”Contracting out of United Nations Convention on Independent Guarantees and Standby Letters of Credit.” International Commercial Law, Vol.1, Issue.1.
23. Shmittoff, Clive M.).1990,( The Law & Practice of International Trade. 19th ed, London: Stevens & Sons.
24. SP Wong, Adrian. (2000), “Restraining a Call on a Performance Bond:should ‘Fraud or Unconscionability’ Be the New Orthodoxy?.” Singapoor Academy of Law Journal, Vol.12.
25.Taylor, Hilary.(2010),”Nothing Is Over Until We Decide It Is”. International Commercial Law, Vol.1, Issue.1.
26. Xiang, Gao. (2010),”The Fraud Rule under the UN Convention on Independent Guarantees and Standby Letters of Credit: A Significant Contribution from an International Prespective”. International Commercial Law, Vol.1, Issue.1.