Fault of the bank that leaves the debit of an account without overdraft allowed…

If you’re flying your CB and that the author of the flight shall make withdrawals and payments, you’ll have to bear that 150 € of expenses – we said the article L133-19 of the French monetary and financial code. The rest must be repaid by your bank. Finally, the moment that you make an appeal, and provided that you have not been negligent. But, according to a judgment of the Court of cassation, 17 may 2017, your own negligence does not prevent you from invoking the failure of the banker of its obligations… Explanation.

Decision of justiceRappel facts

In 2012, a client of the CIC South-West was robbed of his purse, in which was his bank card and lack of bowl, the letter from the bank containing the pin of the card.

The client visited the day after the discovery of the theft in his bank branch to report the incident while several withdrawal operations and payment had been made. Leaving his account in a debit position 6 572,13 €.

The CIC South-West then refused to repay the money taken on the grounds that :

  • He had shown gross negligence in not taking all reasonable steps to maintain the security of their card and their pin. In other words, he was accused of having left unattended – for several days – » his CB and his confidential code in a local presentation to an important passage and not sufficiently secure «
  • He was quick to object to much that the bank had disclosed the phone number available 24h/24

Basically, the bank considered that it had «contributed to his own injury by negligence» and that therefore, he could not be entitled to a refund of the sums.

Even as the client of the CIC South-West claimed that the fault of the bank… it was in the case missed payments and large withdrawals on the account, » in the absence of overdraft allowed «.

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The bank at fault to have authorized transactions and making the account debtor

The Court of cassation considered that, in the absence of «credit agreement by «discovered» – that is to say, of overdraft facility – agreement entered into between the customer and the customer’s bank, the bank could not authorize a payment in excess of the credit balance of the account.

In spite of the put forward by the CIC South-West of the existence in the general terms of the convention on account of the filing of the articles stating, » the possibility that the current account operates in a debit position, the rate of discovered applicable being expressly provided «, and » the obligation of the bank to proceed with the payment as soon as the composition of the pin of that card «, the Court had rejected.

Ground relied on by the court : such clauses are not sufficient to » characterize the existence of an agreement or a past practice of credit by a tacit overdraft «.

Thus, given that the customer’s account has never been a debtor, the Court held that the banker would have had to be alerted by withdrawals fraudulent and that he would not have had to allow them.

Result : the Court considers that the wrongs are shared in this case. Result : his dismissal before the Court of appeal.

Neil Bensouda

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