Kleinwort Benson Limited v.

Malaysian Mining Corporation

Berhad -- A Comparative Note on Comfort Letters

Georg A. Wittuhn*

In Kleinwort Benson Ltd v. Malaysian Mining Dans l'affaire Kleinwort Benson Ltd v.
Corp. Bhd, the English Court of Queen's Malaysian Mining Corp. Bhd, la Cour du banc
Bench held that a comfort letter created a bind- de la reine d~cida qu'une <<comfort letter
ing legal obligation. This case is of particular dtait source d'obligation contraignante. Cet
interest because the Court refused to classify arrt est particuli~rement int6ressant car la
the comfort letter as a guarantee. The author Cour refuse de classer la o comfort letter >>au
analyzes the reasoning in Kleinwort, and pro- chapitre des garanties. L'auteur analyse le
vides a comparative analysis of comfort letters ratio de Kleinwort, et pr6sente une analyse
at common law, with comfort letters in French comparative des « comfort letters > en droit
and German law. frangais, allemand et en common law.

Introduction
Comfort letters, which are also referred to as letters of comfort, letters of
intent or letters of responsibility, are used frequently in commercial and corpo-
rate legal practice. Such a letter is usually written by a parent company' to the
creditor' of a subsidiary or group company,' and makes certain statements about
a loan made, or to be made, to the group company. These letters vary consid-
erably in their wording, and as a consequence, in their legal effect.
The comfort letter is a phenomenon that can be observed in domestic as
well as international trade. It is frequently used if the parties want to avoid spell-
ing out clear liability, as would be the case, for example, if a guarantee were
given. There are various motivations for issuing a comfort letter instead of a
guarantee. It would be erroneous to assume that every issuer of a comfort letter
is a potential rogue. One of the main reasons why the issuer wishes to avoid a
guarantee is that a guarantee must be reflected in the issuer's account. It is argu-
able whether such an obligation exists for comfort letters.4 Thus, the comfort let-

*B.C.L. (University of Hamburg); LL.M. (McGill); Dr. jur. (University of Hamburg); admitted
to the bar in Hamburg, associate of the law firm Ohle Hansen Ewerwahn, Hamburg. Discussions
on the topic of this note with Julie Hamblin, B.A., LL.B., LL.M., were of invaluable help.
© McGill Law Journal 1990
Revue de droit de McGill
'Hereinafter referred to as "issuer".
2
3
Hereinafter referred to as "receiver".
Hereinafter referred to as "group company".
4
Obermtiller, "Die Patronatserklaerung" (1975) 4 ZGR 2ff.; Stoakes, "I have here a piece of
paper signed by ..." [1986] Euromoney 181.
1990] CHRONIQUE DE JURISPRUDENCE

ter does not "taint" the books of the issuer or impair its ability to borrow. From
the point of view of the receiver, the comfort letter poses a higher risk than a
guarantee as it does not give water-proof security. On the other hand, the choice
will frequently be to make a deal with the "perhaps-not-binding" assurance of
a good client who has a good name to lose. In such a situation, the receiver
would be inclined to accept the comfort letter instead of a formal guarantee,
especially if there is a long and well-established business relationship between
the issuer and the receiver.

Until recently, one could have said that these letters were treated differ-
ently in Germany and France, on the one hand, and in Canada, England and the
United States on the other. Whereas French and German courts were more likely
to give effect to these letters,5 the common law jurisdictions did not attribute any
legally binding effect to them. This approach may change drastically with the
decision in Kleinwort Benson Ltd v. MalaysianMining Corp. Bhd 7. This deci-
sion, of the Queen's Bench Division (Commercial Court), which is currently
under appeal, suggests a new approach to comfort letters. Before turning to the
Kleinwort decision,' however, it is useful to give a short overview of the differ-
ent kinds of comfort letters that are used in commercial practice.9 The analysis
of the Kleinwort decision will be followed by a comparative analysis of French
and German law,'" and a critical appraisal of each country's approach."

I. Existing Types of Comfort Letters

Comfort letters can be drafted in a vast number of ways. Usually, one dis-
tinguishes between weak and strong comfort letters, depending on the expected

5
See,infra, sub. IV.
6
Cf. CanadianEncyclopedic Digest (Ontario),vol. 14, title 69, s. 6 [hereinafter C.E.D.]: "A
guarantee differs from a letter of comfort in that a guarantee is intended to be a legally binding
obligation, whereas a letter of comfort is intended to be no more than a statement of intention, and
as such will not usually be binding." But, see, K.P. McGuinness, The Law of Guarantee(Carswell:
Toronto, 1986), s. 12.11 at 363, who concludes that the comfort letter constitutes only a moral obli-
gation and falls short of constituting an assumption of liability by the issuer. See, also, A.T. Miller,
"Memorandum on Letters of Responsibility" (1978) 6 Int. Bus. Lawyer 328. This article is one of
the very few from North America which deals with this subject, and it leaves no doubt that only
very strong comfort letters have the potential to be legally binding - but as guarantees. Moreover,
LEXIS ignores the word "comfort letter", and Kleinwort Benson, infra,note 7, is the first case pub-
lished in England that deals with such letters.
7[1988] I All E.R. 714 (Q.B.) [hereinafter referred to as Kleinwort]. The parties are hereinafter
referred to as "KB" (Kleinwort Benson Limited) and "MMC" (Malaysian Mining Corporation
Berhad).
hlnfra, s. HI.
91nfra, s. II.
Infra, s. IV.
"Infra, s. V.
 REVUE DE DROIT DE McGILL [Vol. 35

degree of enforceability. 2 There is no doubt that one can establish a meticulous

system for distinguishing between a dozen or more different types of comfort
letters. For practical purposes, however, it is sufficient to mention the following
basic types.'

1. Declaration of Knowledge
Infrequently, one encounters comfort letters where the issuer merely
informs the receiver about its participation in the group company. This informa-
tion is sometimes accompanied by a statement to the effect that the issuer has
complete confidence in the entrepreneurial abilities of the management of the
group company.
A comfort letter with this wording gives the creditor no protection at all in
any jurisdiction. Such letters may comfort the addressee in that they suggest that
the parent company has a name to lose, but nothing indicates a legally binding
effect.

2. Declaration of Intent to Participate

It is relatively common to combine the acknowledgement of participation
with a statement that the issuer does not intend to change his participation in the
group company substantially. It may be added that if the issuer decides to sell
the group company, it agrees to enter into negotiations until a solution satisfac-
tory to both parties is found.
Such a comfort letter provides slightly more security, but in no way indi-
cates a commitment to pay for the debts of the group company. So far, no court
decisions giving effect to this type of comfort letter have been reported.

3. Statement of Policy
The statement of knowledge about the group company is accompanied, fre-
quently, by a statement of policy. The issuer of the comfort letter may, for exam-
ple, say that it has been its policy hitherto to regard the group company's obli-
gations as its own; or that it would be contrary to the general policy of the group
to let a group company fall into bankruptcy; or that it is the policy of the issuer
to make sure that the group company is always in a position to meet its financial
obligations."

12Stoakes, supra, note 4 at 181; Rfimker, "Probleme der Patronatserklaerung in der

Kreditsicherungspraxis" [1974] WM 990; Obermiiller, supra, note 4 at 1; see Mfinchner
Vertragshandbuch,Band 1I, Handels- und Wirtschaftsrecht at 194.
13The following classification is based on the empirical research by Obermiiller, supra, note 4,
and Rtimker, supra, note 12, as well as on the personal experience of the author.
4'These statements approximate the wording in Kleinvort.
1990] COMMIENTS

Obviously such a comfort letter provides more security than a declaration

of intent to participate, although its wording falls short of a guarantee. In any
event, the effect of this type of comfort letter is arguable.

4. Comfort Letters that Come Close to a Guarantee

Finally, there are comfort letters that indicate a very strong degree of com-
mitment by stating that the issuer will ensure that the group company fulfils its
obligations, or will provide the group company with the financial means neces-
sary to satisfy the receiver. Letters to this effect come, as will be seen, 5 very
close to a guarantee under common law.

II. The Kleinwort Decision

1. Facts

The factual background of Kleinwort is as follows. In 1983, MMC formed

a wholly-owned subsidiary, MMC Metals Limited (M),16 to operate in the
London market. MMC provided the paid up capital of M, totalling £1.5 million.
Since M needed substantial additional funding MMC approached KB. KB was,
in principle, prepared to open a credit line, but proposed that MMC guarantee
such credit. 7 MMC's representatives stated that it was not the policy of the firm
to guarantee the debts of subsidiaries, but that they were prepared to issue a
comfort letter. KB agreed to this, but on condition that a higher interest rate be
paid. In accordance with KB's request, MMC produced a comfort letter for a
first credit of £5.0 million. The letter read as follows:
We refer to your recent discussion with MMC Metals Limited as a result of
which you propose granting MMC Metals Limited: a) banking facilities of up to
£5 million; and b) spot and forward foreign exchange facilities with a limitation
that total delivery in cash will not on any one day exceed £5 million.
[1] We hereby confirm that we know and approve of these facilities and are
aware of the fact that they have been granted to MMC Metals Limited because we
control directly or indirectly MMC Metals Limited.
[2] We confirm that we will not reduce our current financial interest in MMC
Metals Limited until the above facilities have been repaid or until you have con-
firmed that you are prepared to continue the facilities with new shareholders.
[3] It is our policy to ensure that the business of MMC Metals Limited is at
all times in a position to meet its liabilities to you under the above agreements.
18
Yours faithfully MALAYSIA MINING CORPORATION BERHAD

' 5 See, infr'a, sub. Ill(3)(a).

16Hereinafter referred to as "M".
17
Kleinwort, supra, note 7 at 717.
'Slbid. at 717-18.
 McGILL LAW JOURNAL [Vol. 35

Subsequently the facility was increased to a maximum of £10 million.Y9

The full £10 million facility had been drawn when MMC Metals Limited
became insolvent in 1985. KB demanded payment from MMC. MMC did not
consider itself under any obligation and refused to pay. KB sued MMC for pay-
ment of the full amount of £10 million.

2. Legal Reasoning
The departure point of the decision is the question of whether the comfort
letter was intended to create legal relations. This is a crucial point because "[a]n
agreement, even though it is supported by consideration, is not binding as a con-
tract if it was made without any intention of creating legal relations"."
According to the Court, this intention is generally 2assumed. Reference is made
to Rose & Frank Co. v. J.R. Crompton & Bros Ltd, where the Court held that:

To create a contract there must be a common intention of the parties to enter

into legal obligations, mutually communicated expressly or impliedly. Such an
intention ordinarily will be inferred when parties enter into an agreement which
22
in other respects conforms to the rules of law as to the formation of contracts.

If the parties intend to enter into an agreement without being legally bound,
they have to express themselves precisely, such that outsiders may have no dif-
ficulty in understanding what they mean.'

Therefore, there is a presumption in business matters in favour of a con-

tractual obligation.' In light of this, the Court considered the following points
to be of particular importance:

(a) the language was formal and appropriate to legal obligations; (b) the let-
ters of comfort were matters of importance to KB, and something on which they
plainly relied in granting the facilities, in the first instance for up to £5m, and sub-
sequently up to no less than £10m, to a company with a fully paid up capital of
only £1.5m. It was also treated by MMC as important and as of significance, as
shown by the board's resolution; (c) the extra 1/8% commission reflected the con-
trast between a contractual term, giving rise in case of breach to no more than a
claim in damages, and a full blooded guarantee, which gave rise to a monetary
claim which was much more easily quantifiable and enforceable; (d) if it was
intended not to be legally binding, MMC could and should have said so, in which
5
case KB could have considered their position.2

191bid. at 718.
20
Chitty on Contracts, 25th ed. (London: Sweet & Maxwell, 1983), para. 123 at 70, cited in
Kleinwort, supra, note 7 at 718. See, also, Edwards v. Skyways Ltd, [1964] 1 All E.R. 494 (Q.B.).
21[1923] 2 K.B. 261 (C.A.), rev'd [1925] A.C. 445 (H.L.) [cited hereinafter to C.A.].
"2Ibid.at 293 (per Atkin L.J.).
23Ibid. at 288 (per Scrutton L.J).
24
Kleinwort, supra, note 7 at 724.
2Ibid. at 721.
1990] CHRONIQUE DE JURISPRUDENCE

The leading argument, which is clearly spelled out under (b), and underlies
argument (d), is the fact that KB relied upon the comfort letter and that MMC
was well aware of this.26 The Court recognized this reliance and delivered a
judgment for KB. However, the court refused to classify the letter as a guarantee
because it was not as precise and stringent as a guarantee.27
In finding in favour of KB, the Court faces the difficulty of how to evaluate
the claim. This leads to the following question: what remedies are available to
the receiver? A guarantee usually contains straightforward provisions to facili-
tate prompt enforcement in case of default. The situation is different with a
comfort letter. As the Court points out,
the claim will not be for a liquidated sum, but for damages, whose precise quan-
tification may be controversial, and which is always subject to the plaintiffs' duties
to mitigate. Having regard to all these considerations, it is not in the least surpris-
ing that MMC, while rejecting a formal guarantee, were prepared to accept a par-
agraph like the present one.

In dealing with comfort letters one has to bear these possible difficulties in
mind. If, however, as in Kleinwort, the comfort letter is linked to a specific loan,
it is obvious that the damages equal the amount which remains unpaid. Thus,
the judgment for KB was in the sum of "£1O,004,499.25 principal with interest
on that sum ... making a grand total of £12,262,323.89. "29

3. The Decision in the Context of Previous Canadian and American

Common Law
It is not the intention of this paper to criticize the Kleinwort decision or to
question its compatibility with former caselaw. Some aspects of the judgment,
especially the Court's emphasis on the interests of KB, even though both parties
were aware of the risks, will certainly draw criticism. In the context of a com-
parative study, however, it is sufficient to show that the common law, as com-
pared with the law in Germany and France, has moved in a new direction.
It goes without saying that a single English decision, which is not binding
as precedent on either Canadian or American courts, does not change the land-
scape of the law of guarantees and related instruments. However, Canadian
courts have followed English precedents on a regular basis in the past, and
American courts have already delivered judgments indicating that the treatment
of comfort letters will change in the United States as well. It has already been
stated that the common law of Canada and the United States has not hitherto
26
Ibid. at 723-24.
27
Ibid. at 723.
28
lbid.
29
Ibid. at 724.
 REVUE DE DROIT DE McGILL [Vol. 35

attributed a legally binding effect to comfort letters.3" However, a number of

courts have dealt with letters that come very close, or are identical to, the stron-
gest forms of comfort letters. The courts have usually approached these comfort
letters as guarantees.

(a) The Notion of "Guarantee"

In this context, it is useful to state the definition of a guarantee in abstracto

before turning to the caselaw. In Campbell v. Mclsaac,3 1 a guarantee was
defined as a contractual obligation undertaken by one person (the guarantor) in
which he promises that a second person (the principal) shall perform a contract
or fulfil some other obligation, and that if the principal does not, the guarantor
will perform the contract for the principal. McGuinness defines a guarantee as
a contract to indemnify the creditor upon the occurrence of a contingency,
namely the default of the principal.32 According to a leading English textbook,
the guarantee can be reduced to the following formula: "Deal with X, and if he
does not meet his obligation, I will be answerable."33 American definitions are
very close to the ones just reported. The Corpus Juris Secundum defines the
guarantee as a collateral undertaking by one person to answer for the payment
of a debt, or the performance of some contract or duty, in the case of the default
of another person, who is liable for such payment or performance in the first
place.' 4
As with all contracts at common law, a guarantee requires consideration to
be legally binding. This requirement is met when the creditor is induced to
transfer funds to the principal."

These definitions show that the common law guarantee is a rather flexible
instrument. The obligation of the guarantor is not closely attached to the obli-
gation of the principal.36 The guarantor is answerable, and will indemnify the
creditor. His obligation is not the same as the obligation of the principal.
The case of the guarantee arises when the principal debtor defaults upon
the performance of his obligation. This is very similar to the situation of a com-
fort letter. The receiver cannot ask for damages unless the group company is in
a situation where it can no longer meet its obligations.
30
See, supra, note 6 and accompanying text.
31(1873) 9 N.S.R. 287 (C.A.).
32
The Law of Guarantee,supra, note 6, s. 3.7 at 25 et seq.
33
Anson's Law of Contracts,by A.G. Guest, 26th ed. (Oxford: Clarendon Press, 1984) at 67.
34VoI.
35
38, "Guaranty", 1 at 1129.
C.E.D., vol. 2, title 14, 584 at 331, with further references.
36
See, infra, s. IV, for a discussion of German and French law. Both are much less flexible in
this regard.
1990] COMMENTS

The guarantor is usually discharged if a material alteration of the contract

takes place. 37 The Court in Kleinwort had no reason to decide whether this prin-
ciple also applies to comfort letters. The question is, therefore, open to specu-
lation. In view of the fact that comfort letters aim at damages, it seems more
sensible to ask, in every case, whether such alteration has an impact on the dam-
ages sustained by the receiver, and if so, to what extent. In appropriate cases,
the claim of the receiver should then be reduced accordingly.

(b) Case Law

In Hernando Bank v. Bryant Electric Company, Inc.,3" the Court dealt with
a situation where the defendant had partially taken over a company that was
highly indebted to the plaintiff bank. The defendant gave notice of the new own-
ership and added, with respect to the outstanding loans, that it would "do every-
thing possible to see that this is settled as per agreement."

This is, in effect, a comfort letter, in that it states a certain participation in

the company, and declares an intention to proceed in a certain way concerning
the debts of the group company. The Court stated that it is of primary impor-
tance to determine whether the language chosen by the parties indicates an
intention to answer for the principal debt or for the obligation of the group
company.

According to the Court, the phrase used by the defendant was not sufficient
evidence of such an intention. There can be no doubt that the wording of the let-
ter in this case was much weaker than the wording in Kleinwort. It is, of course,
difficult to say whether the Court in Kleinwort would have decided the case dif-
ferently. This, however, seems unlikely, in that the letter showed no commit-
ment to a certain result, for example, to repayment, but only a vague commit-
ment to enter into negotiations.

In Exchange National Bank of Spokane v. Pantages,39 the wording of the

letter in question was much stronger. The defendant in this case was a share-
holder of a company which had asked the plaintiff for an extended loan. The
defendant sent a telegram, in the following words, to an officer of the debtor
company:

37
The Law of Guarantee,supra, note 6, s. 10.9 at 247 et seq.; "Memorandum on Letters of
Responsibility", supra, note 6 at 330 et seq.
38357 F.Supp. 575 (D.C. Miss. 1973).
39133 P. 1025 (S.C. Wash. 1913).
 McGILL LAW JOURNAL [Vol. 35

Tell bank I request them to renew the note. Security just as good now as when loan
was first made and they are collecting interest
40 on their money. I will arrange things
satisfactory to them upon my return....

This message was communicated to the bank. The Court concluded that the
message was intended to guarantee the loan, mainly because the bank relied on
the assurance in renewing the loan, instead of proceeding on the debt. The
defendant was aware of the expectation of the bank.

Thus, a letter which under modem notions would qualify as a very strong
comfort letter, was treated as a guarantee. The letter in this case was, if at all,
only a little bit stronger than the letter in the Kleinwort decision. As has been
shown, however, the Court in Kleinwort rejected the classification of guarantee
on formal grounds.

A more recent example is Nimrod Marketing (Overseas) Ltd and T.

Anderson-Slight v. Texas Energy Investment Corp. 4' The situation in this case
differed from that in a standard comfort letter case in that the defendants were
participating in a joint venture, rather than being the owners of a group com-
pany. They induced the plaintiffs with a comfort letter to invest in this venture.4
The Court found the defendants liable for "breach of contract", without stating
whether it considered the letter to be a guarantee or a contract sui generis.

(c) Conclusion

In conclusion, it can be said that even before Kleinwort, common law juris-
dictions treated very strong comfort letters as legally binding. These letters
were, however, labeled not as comfort letters, but as guarantees. The flexibility
of the guarantee did not allow for weaker comfort letters, such as the one issued
by MMC, to be treated as legally binding. Thus, the reasoning in Kleinwort is
definitely a new development in the common law. It remains to be seen whether
Kleinwort will become good law and whether it will be followed in Canada and
the United States. It seems, however, that the foundations have been laid for the
adoption of this decision.

4°Ibid, at 1026. Under the laws of most U.S. states, there are no requirements as to the form of
guarantees: Corpus Juris Secundum, supra, note 34, 18 at 1155-57. Under Canadian law, the
Statute of Frauds is applicable. For Ontario, see, R.S.O. 1980, c. 481, s. 4.
41769 F.2d 1076 (5th Cir. 1985).
42
Although the wording of the comfort letter is not reported in this decision, it becomes obvious
that it was close to a guarantee.
1990] CHRONIQUE DE JURISPRUDENCE

III. Comparative Aspects

1. Germany
Comfort letters have been used frequently in Germany for several decades.
Legal scholars and practitioners have analyzed and categorized comfort letters
to an extreme degree. However, they are not regulated in the German civil code,
the BiirgerlichesGesetzbuch,43 and it was, therefore, necessary to find a way to
fit comfort letters into the general system of the BGB."

(a) 'Comfort Letters Stating a Certain Participation and/or the Intention to

Uphold Such Participation

The "weak" comfort letters, which supply only information,4 5 have very
restricted effects under German law. The crucial question is the same as in com-
mon law, namely, whether the issuer had the intention of making a binding
promise, or whether he should have reasonably foreseen that his declaration
would be interpreted by the receiver as such a promise.46 In the situation of a
parent company corresponding with a financial institution about a loan to a
group company, it is generally held that the issuer had this intention, or could
reasonably have foreseen such an understanding on the part of the buyer.47
Merchants who negotiate over considerable amounts of money are expected to
know that their declarations have legal consequences.4"

As a result, comfort letters are considered to be a valid offer by the issuer

to enter into a contract sui generis to provide certain information about both the
issuer and the group company. The implied acceptance of this offer can be seen
in the transfer of funds to the group company. If, however, the information was
correct at the time it was provided, no further liability can flow from such a let-
ter. Nothing in it indicates or can be interpreted as indicating that the issuer
assumes the obligation of the group company. Nothing prevents the issuer from

43
Hereinafter referred to as "BGB".
44As noted in sub.(c), infra, it is not possible to subsume comfort letters under the provisions
that45 govern guarantees.
See, supra, s. 11.1.
460bermiiller, supra, note 4 at 15; Schraepler, "Die Patronaytserkla-ung als Kreditsicherheit",
[19751
47
ZKW 215.
Schriipler, supra, note 46 at 216; Palandt, Kommentar zum BGB, 48. Auflage, Miinchen 1988,
6764 Anmerkung 2 (Thomas).
8Obermtiller, supra,note 4 at 6; Palandt, supra,note 47 at 676 Anmerkung 3 (Thomas); Mdser,

"Patronatserklarung und Kreditsicherheit", [1979] DB 1469.

 REVUE DE DROIT DE McGILL [Vol. 35

letting the group company fall into bankruptcy even if the creditor has been
promised that a certain level of participation will be maintained.49

(b) Comfort Letters Stating a Policy

There is considerable dispute as to how these comfort letters should be

treated. Most of them, as they are used in Germany, differ from the comfort let-
ter issued by MMC in that they state that it is the present policy of the issuer
to provide the group company with the necessary financial means. The majority
of scholars stress this component, and argue that there is a binding contract to
provide information about the issuer's policy. This does not, however, prevent
the issuer from changing this policy." Some scholars, on the other hand, argue
that the general good faith clause of 242 BGB requires that even a letter stating
only apresent policy, contains an implied warranty to the effect that such policy
will not be changed during the term of the credit.5 '

The majority opinion is convincing in light of the reluctance of German

courts to grant motions or hold in favour of a party on the basis of good faith
and confidence in commercial law. 2 In the case of the comfort letter issued by
MMC, however, there can be no doubt that a legally binding obligation would
be assumed under German law. The question of intention to be legally bound,
in letters stating the amount of participation, also arises in letters stating a pol-
icy.53 The issuer cannot pretend that he wanted to describe only a present policy,
one that he might change any day without consequence. The legal consequence
would be that the issuer is liable for the debt secured by the comfort letter
the same result reached by the Court in Kleinwort.
49
Rehbinder, Konzernaussenrecht und allgemeines Privatrecht, 1969, at 332; Rfimker, supra,
note
50
12, at 994.
Rtimker, supra, note 12 at 994; Rehbinder, supra, note 49 at 332; Schraepler, supra, note 46
at 217.
51
Erman, "Zur Frage der haftung der Hinterminner iberschuldeter Gesellschaften" [1959] KTS
12952 at 132; see Gerth, Atypische Kreditsicherheiten,K6ln 1980 at 40ff.
1n BGHZ 45, 204, for example, the court had to decide a case where the wealthy Dean of a
College had founded a limited partnership with a poor worker as the sole general partner. Though
he was only registered as a limited partner, the Dean ran the business and conveyed to the creditors
the impression that he would financially uphold the business in a crisis. (Under German law, a lim-
ited partner does not lose his limited liability merely by acting as a manager. See, Karsten Schmidt,
Gesellschaftsrecht,K6ln etc. 1986, at 1154 ff).The Dean did not, however, issue a comfort letter.
The partnership went into bankruptcy and the creditors sued the Dean. The Court ruled that the
mere confidence could not generate any liability without the support of a legally binding
declaration.
53
1bid., sub.(a).
1990] COMMENTS

(c) Comfort Letters that Come Close To a Guarantee

In view of the treatment of strong comfort letters in common law jurisdic-

tions, one may ask whether comfort letters can be classified as guarantees under
German law.

The guarantee (Biirgschaft)is a special contract regulated by 765ff. BGB.

Section 765 BGB reads as follows:

(1) By a contract of guarantee, the guarantor binds himself to the creditor of a third
party to be responsible for the fulfilment of the obligation of the third party.
(2) A guarantee may also be assumed for a future or conditional obligation.

It is undisputed that from the wording of 765 (1) BGB, even the strongest
comfort letter cannot be classified as a guarantee. Under 765 (1) BGB, the guar-
antor assumes the same obligation as the original debtor, the third party. This
means that the creditor can demand that the guarantor meet the debt if the third
party is in default.' The issuer of a comfort letter, on the other hand, is at most
obliged to help the group company (the third-party debtor) fulfil the contract.
From an economic perspective, there may be no difference between these obli-
gations. A flawless legal analysis, however, commands that the comfort letter
be regarded as a contract sui generis which bears certain characteristics of a
guarantee."

The legal consequences of such a contract are obvious in light of the fact
that even weaker comfort letters are considered to be legally binding. The issuer
is obliged to provide the group company with sufficient funds during the term
of the loan.56 The issuer is, however, not freed of its obligation merely by pro-
viding the money, unless the loan is actually repaid. This means that the issuer
has to make further contributions if the money is seized by other creditors or
spent by the group company for other purposes.57 The Oberlandesgericht58
Stuttgart recently held that this obligation becomes an obligation to pay dam-
ages if the group company falls into bankruptcy. These damages cover the loan
as well as any expenses (interest, etc.).59

54See, Palandt-Thomas, supra, note 48 at 765 Anmerkung 1.

55
Rtimker, supra, note 12 at 991; Obermiiller, supra, note 4 at 25; Staudinger-Nipperdey,
Kommentar
56
zum Biirgerlichen Gesetzbuch, 741-822, 12. Auflage, Berlin 1982, 765 Rdn. 40.
Riimker, supra, note 12 at 992; Schraepler, supra, note 46 at 216.
57
Obermiiller, supra, note 4 at 26ff.; Rlimker, supra, note 12 at 991.
58
Court of Appeal, hereinafter OLG
59
0LG Stuttgart [1985] WM at 455; see ObermUller, supra,note 4 at 28 ff.; R imker, supra,note
12 at 991.
 McGILL LAW JOURNAL [Vol. 35

2. France

French doctrine has not analyzed comfort letters as meticulously as

German doctrine. However, the rules that govern comfort letters are very sim-
ilar. As early as 1973, the president of the Association professionelle des ban-
ques declared that:

[il] atteste et certifie que, dans les usages bancaires frangais, la lettre, par laquelle
une soci6t6 de renom indiscut6 sur le plan tant de la morale commerciale que de
l'assise financi~re, parraine une soci~t6 qu'elle contr6le pour l'obtention ou le
maintien d'un cr6dit, constitue un engagement moral d'assurer la bonne fin du cr6-
dit et est consid~r6e comme pr6sentant
6 en pratique une s6curit6 comparable ,t celle
d'un engagement de caution. 0

Nonetheless, this binding effect (of the same type as a "caution" 61) is not attrib-
uted to all comfort letters, as an analysis of the reported decisions shows.

(a) Court Decisions

In a relatively recent decision, the Cour d'appel de Paris 62 held that comfort
letters which merely provide information have no binding effect. The letter in
question was somewhat different from a standard comfort letter, in that the
defendant bank vouched for the credit-worthiness of a client in the following
terms:

Nous avons l'honneur d'introduire aupr~s de vous et de recommander h votre

meilleur accueil M.L., de la soci6t6 D., bon client de notre 6tablissement. Nous
vous serions reconnaissant de bien vouloir mettre Ala disposition de M.L. et de
lui foumir, dans la mesure du possible, les renseignements
63 qu'il pourrait etre
amen6 Avous demander afin de faciliter sa mission.

This letter induced the receiver to open credit lines to the said company which
subsequently went bankrupt. The Court held that this letter was far too vague
to generate legal obligations.' This holding has been approved by several
learned writers.6'

In 1979, the Cour d'appel de Paris dealt with a comfort letter in which the
defendant made the following promise:

6°Cited
61
in Juris-Classeur Civil Art. 2011-2020, Fasc. 1, no. 39.
The equivalent of a guarantee, as shown, infra, notes 65 and 66, and accompanying text.
62
See J. Mestre, "Obligations et contrats sp6ciaux", [1985] R.T.D.C. 726 at 730.
63
1bid.
64Ibid.
65
Vasseur, "Observation", D.S. 1985, I.R. 340; Mestre, supra, note 62 at 731; Supra, note 60 at
no. 40.
1990] CHRONIQUE DE JURISPRUDENCE

faire tout le n6cessaire pour que sa filiale dispose d'une tr6sorerie suffisante lui
66
permettant de faire face aux obligations par elle contract6es envers la banque.

In relation to the legal effects of this clause, the Court held:

En cons6quence de la lettre d'intention, par laquelle une soci6t6 s'engage envers
une banque, pour une dur6e d'une ann6e prorog6e d'une seconde ann6e, faute de
d6nonciation dans le ddlai pr6vu, A faire tout le n6cessaire pour que telle autre
socidt6, sa filiale, dispose d'une trdsorerie suffisante, lui permettant de faire face
aux obligations par elle contract6es envers la banque en compte courant, au titre
d'op6rations d'escompte et d'autres op6rations de mobilisations de cr6ances, du
chef d'engagements de toute nature et de ce fait, de tout cr6dit consenti qu'elle
qu'en soit la forme, la soci&&m~re assume une obligation contractuelle aux ter-
mes de laquelle elle garantit le solde cr6diteur du compte de sa filiale dans les
livres de la banque.67

Thus, the Court confirmed the legally binding character of a comfort letter that
was very similar to the one issued by MMC in the Kleinwort case.

In 1985, the Cour d'appel de Montpellier reached the same result. The
comfort letter in this case was even closer to that in Kleinwort, since it con-
tained a statement as to the company's policy:

En qualit6 d'actionnaire majoritaire .... nous affkmons notre intention de suivre et

soutenir notre filiale dans ses besoins financiers et, dans le cas ofi cela deviendrait
n6cessaire, de nous substituer elle pour faire face A tous les engagements qu'elle
pourrait prendre Avotre dgard, notre souci 6tant de veiller de fagon durable A sa
totale solvabilit6. Nous confirmons notre intention, en cas de n6cessit6, d'effectuer
immdiatement les d~marches necessaires 68 aupr~s de nos autorit6s pour obtenir
l'autorisation de transfert des fonds.

As in Germany, the idea of classifying the comfort letter as a guarantee -

a "cautionnement" - is rejected. The "cautionnement" is regulated by art. 2011
et seq. of the Code Civil Frangais. 69 Article 2011 reads
as follows: "Celui qui
se rend caution d'une obligation se soumet envers le crdancier 4 satisfaire cette
obligation, si te d6biteur ni satisfait pas lui-meme."
The Cour d'appel de Montpellier held that a "cautionnement" under art.
2011 C.C.F. requires that the guarantor be obliged to satisfy the claim of the
creditor as if he were the debtor. A mere obligation to fund the debtor is not
sufficient.
French scholars have argued that it would be possible to classify such com-
fort letters as a "cautionnement", but those scholars do not advance the argu-
66Vasseur, D.S. 1980, I.R. 55.
67
Ibid.
6
1D.S. 1985, I.R. 341.
69
Hereinafter C.C.F.
 REVUE DE DROIT DE McGILL (Vol. 35

ment very forcefully.7" In any event, the result, namely liability on the part of
the issuer, is undisputed.

Conclusion
A comparison of the laws of Canada, the United States, France and
Germany, shows that comfort letters are beginning to receive similar treatment
in each jurisdiction.
Concerning those comfort letters that spell out a clear obligation, it can be
said that all jurisdictions reached the same result even before Kleinwort was
decided, albeit for different reasons. The common law jurisdictions did not have
to make use of the concept of comfort letters. The notion of guarantee was suf-
ficiently flexible to cover comfort letters even if the wording of such letters did
not meet the strictest requirements.
The civil law jurisdictions, Germany and France, were precluded from pro-
ceeding in this way. They had to develop the notion of a comfort letter because
even the strongest of these letters would not qualify as a guarantee, under the
rigid requirements of the BGB and the C.C.F., respectively. France and
Germany, however, went one step further, by giving legal effect to comfort let-
ters that could not possibly be subsumed under the notion of guarantee at com-
mon law.
The gap between the jurisdictions was quite significant even if German
scholars and courts were hesitant about introducing equitable principles into
commercial law. Further, it is not particularly difficult to imagine the problems
of jurisdiction and private international law that could result from differences in
treatment of an instrument that is frequently used in international trade.
It seems that this gap has been closed by the decision in Kleinwort. This
result is perfectly in tune with the growing willingness of common law courts
to apply equitable principles in commercial law, especially in the law of con-
tracts. It is, perhaps, arguable whether this tendency is just or meets the justi-
fiable expectations of the parties involved. From an economic perspective, how-
ever, such a change in the legal framework does not make an important
difference. Both issuers and receivers will simply reassess their policies con-
cerning comfort letters. Issuers who want to remain in the shady area where lia-
bility is doubtful will draft much weaker letters than before. Banks and other
receivers who were prepared to take such risks before Kleinwort will continue
to accept such letters.

70
Vasseur, supra, note 65 at 342; Supra,note 60 at Addendum 1985, no. 40; Mestre, supra, note
62 at 730ff.