CO Code § 4-5-102 (2021)
2021 Colorado Code|Title 4 - Uniform Commercial Code|Article 5 - Letters of Credit|§ 4-5-102. Definitions

  In this article:   “Adviser” means a person who, at the request of the issuer, a confirmer, or another adviser, notifies or requests another adviser to notify the beneficiary that a letter of credit has been issued, confirmed, or amended.    “Applicant” means a person at whose request or for whose account a letter of credit is issued. The term includes a person who requests an issuer to issue a letter of credit on behalf of another if the person making the request undertakes an obligation to reimburse the issuer.    “Beneficiary” means a person who under the terms of a letter of credit is entitled to have its complying presentation honored. The term includes a person to whom drawing rights have been transferred under a transferable letter of credit.    “Confirmer” means a nominated person who undertakes, at the request or with the consent of the issuer, to honor a presentation under a letter of credit issued by another.    “Dishonor” of a letter of credit means failure timely to honor or to take an interim action, such as acceptance of a draft, that may be required by the letter of credit.    “Document” means a draft or other demand, document of title, investment security, certificate, invoice, or other record, statement, or representation of fact, law, right, or opinion (i) which is presented in a written or other medium permitted by the letter of credit or, unless prohibited by the letter of credit, by the standard practice referred to in section 4-5-108 (e) and (ii) which is capable of being examined for compliance with the terms and conditions of the letter of credit. A document may not be oral.    “Good faith” means honesty in fact in the conduct or transaction concerned.    “Honor” of a letter of credit means performance of the issuer's undertaking in the letter of credit to pay or deliver an item of value. Unless the letter of credit otherwise provides, “honor” occurs:   Upon payment;    If the letter of credit provides for acceptance, upon acceptance of a draft and, at maturity, its payment; or    If the letter of credit provides for incurring a deferred obligation, upon incurring the obligation and, at maturity, its performance.       “Issuer” means a bank or other person that issues a letter of credit, but does not include an individual who makes an engagement for personal, family, or household purposes.    “Letter of credit” means a definite undertaking that satisfies the requirements of section 4-5-104 by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value.    “Nominated person” means a person whom the issuer (i) designates or authorizes to pay, accept, negotiate, or otherwise give value under a letter of credit and (ii) undertakes by agreement or custom and practice to reimburse.    “Presentation” means delivery of a document to an issuer or nominated person for honor or giving of value under a letter of credit.    “Presenter” means a person making a presentation as or on behalf of a beneficiary or nominated person.    “Record” means information that is inscribed on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form.    “Successor of a beneficiary” means a person who succeeds to substantially all of the rights of a beneficiary by operation of law, including a corporation with or into which the beneficiary has been merged or consolidated, an administrator, executor, personal representative, trustee in bankruptcy, debtor in possession, liquidator, and receiver.       Definitions in other articles applying to this article and the sections in which they appear are:    Article 1 of this title contains certain additional general definitions and principles of construction and interpretation applicable throughout this article.      Accept or acceptance Section 4-3-409 Value , Sections 4-3-303 4-4-211   History. Source: L. 96: Entire article R&RE, p. 191, § 1, effective July 1.    Editor's note:   This section is similar to former § 4-5-103 as it existed prior to 1996.   OFFICIAL COMMENT   1. Since no one can be a confirmer unless that person is a nominated person as defined in Section 5-102(a)(11), those who agree to “confirm” without the designation or authorization of the issuer are not confirmers under Article 5. Nonetheless, the undertakings to the beneficiary of such persons may be enforceable by the beneficiary as letters of credit issued by the “confirmer” for its own account or as guarantees or contracts outside of Article 5.   2. The definition of “document” contemplates and facilitates the growing recognition of electronic and other nonpaper media as “documents,” however, for the time being, data in those media constitute documents only in certain circumstances. For example, a facsimile received by an issuer would be a document only if the letter of credit explicitly permitted it, if the standard practice authorized it and the letter did not prohibit it, or the agreement of the issuer and beneficiary permitted it. The fact that data transmitted in a nonpaper (unwritten) medium can be recorded on paper by a recipient's computer printer, facsimile machine, or the like does not under current practice render the data so transmitted a “document.” A facsimile or S.W.I.F.T. message received directly by the issuer is in an electronic medium when it crosses the boundary of the issuer's place of business. One wishing to make a presentation by facsimile (an electronic medium) will have to procure the explicit agreement of the issuer (assuming that the standard practice does not authorize it). Where electronic transmissions are authorized neither by the letter of credit nor by the practice, the beneficiary may transmit the data electronically to its agent who may be able to put it in written form and make a conforming presentation.   3. “Good faith” continues in revised Article 5 to be defined as “honesty in fact.” “Observance of reasonable standards of fair dealing” has not been added to the definition. The narrower definition of “honesty in fact” reinforces the “independence principle” in the treatment of “fraud,” “strict compliance,” “preclusion,” and other tests affecting the performance of obligations that are unique to letters of credit. This narrower definition — which does not include “fair dealing” — is appropriate to the decision to honor or dishonor a presentation of documents specified in a letter of credit. The narrower definition is also appropriate for other parts of revised Article 5 where greater certainty of obligations is necessary and is consistent with the goals of speed and low cost. It is important that U.S. letters of credit have continuing vitality and competitiveness in international transactions.   For example, it would be inconsistent with the “independence” principle if any of the following occurred: (i) the beneficiary's failure to adhere to the standard of “fair dealing” in the underlying transaction or otherwise in presenting documents were to provide applicants and issuers with an “unfairness” defense to dishonor even when the documents complied with the terms of the letter of credit; (ii) the issuer's obligation to honor in “strict compliance in accordance with standard practice” were changed to “reasonable compliance” by use of the “fair dealing” standard, or (iii) the preclusion against the issuer (Section 5-108(d)) were modified under the “fair dealing” standard to enable the issuer later to raise additional deficiencies in the presentation. The rights and obligations arising from presentation, honor, dishonor and reimbursement, are independent and strict, and thus “honesty in fact” is an appropriate standard.   The contract between the applicant and beneficiary is not governed by Article 5, but by applicable contract law, such as Article 2 or the general law of contracts. “Good faith” in that contract is defined by other law, such as Section 2-103(1)(b) or Restatement of Contracts 2d, § 205, which incorporate the principle of “fair dealing” in most cases, or a State's common law or other statutory provisions that may apply to that contract.   The contract between the applicant and the issuer (sometimes called the “reimbursement” agreement) is governed in part by this article (e.g., Sections 5-108(i), 5-111(b), and 5-103(c)) and partly by other law (e.g., the general law of contracts). The definition of good faith in Section 5-102(a)(7) applies only to the extent that the reimbursement contract is governed by provisions in this article; for other purposes good faith is defined by other law.   4. Payment and acceptance are familiar modes of honor. A third mode of honor, incurring an unconditional obligation, has legal effects similar to an acceptance of a time draft but does not technically constitute an acceptance. The practice of making letters of credit available by “deferred payment undertaking” as now provided in UCP 500 has grown up in other countries and spread to the United States. The definition of “honor” will accommodate that practice.   5. The exclusion of consumers from the definition of “issuer” is to keep creditors from using a letter of credit in consumer transactions in which the consumer might be made the issuer and the creditor would be the beneficiary. If that transaction were recognized under Article 5, the effect would be to leave the consumer without defenses against the creditor. That outcome would violate the policy behind the Federal Trade Commission Rule in 16 CFR Part 433. In a consumer transaction, an individual cannot be an issuer where that person would otherwise be either the principal debtor or a guarantor.   6. The label on a document is not conclusive; certain documents labelled “guarantees” in accordance with European (and occasionally, American) practice are letters of credit. On the other hand, even documents that are labelled “letter of credit” may not constitute letters of credit under the definition in Section 5-102(a). When a document labelled a letter of credit requires the issuer to pay not upon the presentation of documents, but upon the determination of an extrinsic fact such as applicant's failure to perform a construction contract, and where that condition appears on its face to be fundamental and would, if ignored, leave no obligation to the issuer under the document labelled letter of credit, the issuer's undertaking is not a letter of credit. It is probably some form of suretyship or other contractual arrangement and may be enforceable as such. See Sections 5-102(a)(10) and 5-103(d). Therefore, undertakings whose fundamental term requires an issuer to look beyond documents and beyond conventional reference to the clock, calendar, and practices concerning the form of various documents are not governed by Article 5. Although Section 5-108(g) recognizes that certain nondocumentary conditions can be included in a letter of credit without denying the undertaking the status of letter of credit, that section does not apply to cases where the nondocumentary condition is fundamental to the issuer's obligation. The rules in Sections 5-102(a)(10), 5-103(d), and 5-108(g) approve the conclusion in Wichita Eagle Beacon Publishing Co. v. Pacific Nat. Bank, 493 F.2d 1285 (9th Cir. 1974).   The adjective “definite” is taken from the UCP. It approves cases that deny letter of credit status to documents that are unduly vague or incomplete. See, e.g., Transparent Products Corp. v. Paysaver Credit Union, 864 F.2d 60 (7th Cir. 1988). Note, however, that no particular phrase or label is necessary to establish a letter of credit. It is sufficient if the undertaking of the issuer shows that it is intended to be a letter of credit. In most cases the parties' intention will be indicated by a label on the undertaking itself indicating that it is a “letter of credit,” but no such language is necessary.   A financial institution may be both the issuer and the applicant or the issuer and the beneficiary. Such letters are sometimes issued by a bank in support of the bank's own lease obligations or on behalf of one of its divisions as an applicant or to one of its divisions as beneficiary, such as an overseas branch. Because wide use of letters of credit in which the issuer and the applicant or the issuer and the beneficiary are the same would endanger the unique status of letters of credit, only financial institutions are authorized to issue them.   In almost all cases the ultimate performance of the issuer under a letter of credit is the payment of money. In rare cases the issuer's obligation is to deliver stock certificates or the like. The definition of letter of credit in Section 5-102(a)(10) contemplates those cases.   7. Under the UCP any bank is a nominated bank where the letter of credit is “freely negotiable.” A letter of credit might also nominate by the following: “We hereby engage with the drawer, indorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this credit that the same will be duly honored on due presentation” or “available with any bank by negotiation.” A restricted negotiation credit might be “available with x bank by negotiation” or the like.   Several legal consequences may attach to the status of nominated person. First, when the issuer nominates a person, it is authorizing that person to pay or give value and is authorizing the beneficiary to make presentation to that person. Unless the letter of credit provides otherwise, the beneficiary need not present the documents to the issuer before the letter of credit expires; it need only present those documents to the nominated person. Secondly, a nominated person that gives value in good faith has a right to payment from the issuer despite fraud. Section 5-109(a)(1).   8. A “record” must be in or capable of being converted to a perceivable form. For example, an electronic message recorded in a computer memory that could be printed from that memory could constitute a record. Similarly, a tape recording of an oral conversation could be a record.   9. Absent a specific agreement to the contrary, documents of a beneficiary delivered to an issuer or nominated person are considered to be presented under the letter of credit to which they refer, and any payment or value given for them is considered to be made under that letter of credit. As the court held in Alaska Textile Co. v. Chase Manhattan Bank, N.A., 982 F.2d 813, 820 (2d Cir. 1992), it takes a “significant showing” to make the presentation of a beneficiary's documents for “collection only” or otherwise outside letter of credit law and practice.   10. Although a successor of a beneficiary is one who succeeds “by operation of law,” some of the successions contemplated by Section 5-102(a)(15) will have resulted from voluntary action of the beneficiary such as merger of a corporation. Any merger makes the successor corporation the “successor of a beneficiary” even though the transfer occurs partly by operation of law and partly by the voluntary action of the parties. The definition excludes certain transfers, where no part of the transfer is “by operation of law” — such as the sale of assets by one company to another.   11. “Draft” in Article 5 does not have the same meaning it has in Article 3. For example, a document may be a draft under Article 5 even though it would not be a negotiable instrument, and therefore would not qualify as a draft under Section 3-104(e).   ANNOTATION   Law reviews. For article, “Commercial Law”, which discusses Tenth Circuit decisions dealing with questions of definition and interpretation, see 63 Den. U.L. Rev. 225.   Annotator's note. Since § 4-5-102 is similar to § 4-5-103 as it existed prior to the 1996 repeal and reenactment of this article, relevant cases construing that provision have been included in the annotations to this section.   Letter of credit not similar to surety contract. An analogy between a surety contract and a letter of credit is not well taken. General Ins. Co. of Am. v. City of Colo. Springs, 638 P.2d 752 (Colo. 1981).   But akin to cashier's check. The letter of credit is closely akin to a cashier's check or other negotiable instrument issued by a bank. Leney v. Plum Grove Bank, 670 F.2d 878 (10th Cir. 1982).   Effect of letter of credit on issuing bank. By issuing a letter of credit, the bank substitutes its credit for that of its customer. Leney v. Plum Grove Bank, 670 F.2d 878 (10th Cir. 1982).   One of the uses of credits is to secure performance of a contract between a bank's customer and a third party. Hyland Hills Metro. Park Recreational Dist. v. McCoy Enters., Inc., 38 Colo. App. 23, 554 P.2d 708 (1976).   Two separate contracts are involved. The bank issuing the letter of credit is bound by its terms and has no obligation or right to investigate the performance of the other contract to which the credit relates. Hyland Hills Metro. Park Recreational Dist. v. McCoy Enters., Inc., 38 Colo. App. 23, 554 P.2d 708 (1976).   If printed and written, or typed, provisions of a letter of credit cannot be reconciled, the written, or typed, provisions prevail. Hyland Hills Metro. Park Recreational Dist. v. McCoy Enters., Inc., 38 Colo. App. 23, 554 P.2d 708 (1976).   Liability of bank where payment not in accordance with credit terms. Payment by a bank, if not in accordance with the terms of the credit, would have rendered the bank liable to the customer. Hyland Hills Metro. Park Recreational Dist. v. McCoy Enters., Inc., 38 Colo. App. 23, 554 P.2d 708 (1976).   Forum for suing out-of-state issuing bank limited. It is unfair to burden an out-of-state issuing bank with having to defend litigation over a letter of credit in any state in which the bank could reasonably expect the credit to be used. Leney v. Plum Grove Bank, 670 F.2d 878 (10th Cir. 1982).   Bank's obligation held terminated. Where a third party was seeking payment under the letter of credit because of the bank customer's failure to construct the tennis courts, it was required to present its “signed statement dated January 5, 1974, and presented on that date”, setting forth that fact according to the terms of the letter of credit. Upon its failure to do so, the obligation of the bank terminated. Hyland Hills Metro. Park Recreational Dist. v. McCoy Enters., Inc., 38 Colo. App. 23, 554 P.2d 708 (1976).   “Guaranty letter of credit” issued by a bank requiring a documentary demand, and conspicuously stating that it was a letter of credit, falls squarely within the definition of letter of credit so that a defendant bank cannot escape its obligation to honor a demand on it. East Bank v. Dovenmuehle, Inc., 196 Colo. 422 , 589 P.2d 1361 (1978).   Existence of nondocumentary conditions does not invalidate letters of credit. Raiffeisen-Zentralkasse Tirol v. First Nat'l Bank, 671 P.2d 1008 (Colo. App. 1983).   Applied in Colo. Nat'l Bank v. Bd. of County Comm'rs, 634 P.2d 32 (Colo. 1981).