O regulă cât un standard: conduita băncii în executarea scrisorii de garanţie autonomă
A rule as a standard: the behavior of the bank in the execution of the autonomous guarantee letter

Summary/Abstract: In the event of manifest abuse or fraud, the (exceptional) autonomy of independent guarantees must be abandoned in favour of the (natural) accessoriality of guarantees, and therefore the abuse/fraud may be established in relation to the underlying contract between the account party and the beneficiary. Should the issuing bank have knowledge of the fact that the demand for payment is abusive or fraudulent, it has the duty to refrain from payment, not only the right to refrain. Bank’s decision to refrain from payment must be based on evidence that is clear, available, and beyond any reasonable doubt, and which the account party has both the interest and the possibility to present. The standard of conduct which the issuing bank should adopt in the event of an manifestly abusive or fraudulent demand for payment implies good-faith, care and diligence in reviewing the call for payment and the evidence submitted to it, as well as the deferment of payment until a judgment is awarded in the account party’s application for a restraining order to prevent payment by the bank; the judicial mechanisms are efficient as far as they avoid the materialization of abusive or fraudulent demands for payment, hence if they act ex ante, not only ex post.

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