Page:Harvard Law Review Volume 32.djvu/41

7 LETTERS OF CREDIT 7 "Most civilians are agreed that the bare agreement to make a loan to another binds the promisor and gives rise to an action against him. . . . For according to the Roman law a stipulatio de mutuo dando has actionable obligation. But today a bare agreement is as efl&cacious as a Roman stipulation." ^' In French law an obligation a donner involves a duty to deliver in specie and hence is treated much as we do cases to which we apply the equitable maxim of considering that as done that ought to be done.^" It follows that the promise to loan money or extend credit is not only legally enforceable but the case is treated as if the promisor actually held the money of the promisee.^^ If, then, a letter of credit is treated as an opening of a credit, it means that the case is considered as one where the person for whom the letter is given has deposited money with the one who gives the letter, to be drawn on by those who advance money upon the letter. The third person who advances money on the letter is treated the same as a depositor drawing on his account. Simply those who give credit on the faith of the letter draw on the deposit instead of the holder of the letter, and they do this by virtue of the contract of mandate between the one who issues the letter and the one to whom it is addressed. As between the issuer of the letter and the holder, the letter is not revocable because the law holds the promisor in the opening of a credit to performance of his promise. But when a mandate has ceased to be executory it has ceased to be revocable. ^^ Because of their theory of mandate the French usually provide an express clause as to revocability.^^ When this French theory of the letter of credit is applied to our law it will be seen that, although at first sight both the theory of the pactum de mutuo dando and the theory of the mandate are in- applicable, we have legal doctrines which may be utilized to bring about similar results. If in French law the letter of credit testifies to an opening of a credit, in our law it may be said to amount to an § 236; 2 Crome, System des Deutschen [burgerxichen Rechts, § 247, 4; i En- NECCERUS, KlPP UND WOLFF, LeHRBUCH DES BURGERUCHEN ReCHTS, 1912 ed., § 364. 1* 12 Gluck, Pandekten, § 779. See also 4 Gluck, § 292; 13 Stryk Opera Omn., ed. of 1840, 312. ^1 20 Baxjdry-Lacantinerie, Traite de Droit Civil, § 701. « Inst. Ill, 26, § 9. 2* 4 Lyon-Caen et Renault, § 739.
 * " French Civil Code, Art. 1136.