Fraud in Nigeria. It is by that name that often are referred to these frauds have been developing for many years on the Internet. The goal is simple: to convince a user to send the scammer (or his accomplices or mules) cash via a non-traceable (eg Western Union). Afterwards, the means employed are multiple: to believe that one has received a large inheritance and that one needs help to get him out of the country itself as the seller of a vehicle and get the victim's part of the proceeds of the sale before it takes possession of the vehicle, etc. ... The imagination is limitless fraudsters.
Faced with these practices, the victims were taken to sue. Not against the crooks, but against their bank. Why? For all victims, the bank had breached its obligations and duties (duty to advise the duty to inform, etc..) Leaving their clients and withdraw cash and send it to a perfect stranger at the other end of the world .
During the year 2010, Many judges have had the opportunity to address this problem. We'll try to summarize the answers here. They are rather simple: the judge is receiving less and less responsibility for the bank compared to the years 2006 and 2007 that such responsibility was most often chosen.
May 5, 2010 - Court of Appeal of Besançon
A user sells a vehicle at a price of 1000 €. He then receives a check for € 7,500 to file on behalf of 25 April 2006. On April 27, 2006, he recites the sum of 6,500 € for transfer to the "pseudo-carrier" and € 1,000 for the buyer decides to cancel the purchase. Both amounts were transferred by Western Union. On May 3, 2006, the check turns out to be outstanding.
The Court of Appeal of Besançon:
"It should be emphasized the very particular circumstances of the transaction that should have prompted a special vigilance because its purchaser named Curtis Clarke, owner of an e-mail in the United Kingdom, sent him a check to a third shot at a French bank in this case the Post Office and had planned to incur costs equivalent transport more than six times the purchase price, on behalf of a shipping agent for its established in the United States. Registration in immediate account of a bank check is a use which does not bind responsibility of the banker, if not provided, except for lack of characterized it.
It also appears that the individual made the withdrawal of this sum in full two days after depositing the check at least suspect, then it does not justify any particular urgency to undertake such transaction, the bank, in the absence specific information, had, April 27, 2006, no legitimate reason to oppose it and it is clear that this is solely because of the rush on which it can not be explained as the individual found himself trapped by the scam of the buyer. "
The liability of the bank is not accepted.
May 6, 2010 - Court of Appeal of Paris
A person shall sold his car at a price of 5500 €. It receives from a Dutch buyer a cashier's check in the amount of 9000 € drawn on an Irish bank. It cash that check December 31, 2004. On 12 January 2005, she withdrew € 3,500 for pay that amount by Western Union to a person posing as the carrier. On February 4, 2005, Société Générale was informed that the bank check is a forgery and automatically debit the bank account.
The Court of Appeal of Paris:
"the bank that receives a cashier's check that is not grossly falsified is not bound to a particular duty of care, it is not established as the date the check was presented, the attention of banks have been attracted to suspicious transactions made on behalf of the Irish bank, the newspaper article being placed in evidence as of May 2005, in contrast, the recipient of the check should have been alerted by the modus operandi for the least strange "The liability of the bank is not accepted.
May 6, 2010 - Court of Appeal of Aix-en-Provence
A surfer is selling his bike for the price of 2700 €. A buyer sends a cashier's check in the amount of 7,900 € drawn on a UK bank. On October 15, 2005, he cashes the check. On October 27, 2005, he recites the sum of 5,200 € for send to the buyer via Western Union. On October 29, 2005, the check returns unpaid.
The Court of Appeal of Aix-en-Provence:
"Whereas if the check in question was credited to October 19, 2005 (value date) and subject to collection, it appears that the Caisse d'Epargne has failed in its obligation to provide information and advice to his client to make a cash withdrawal of 5,500 euros October 27, 2005 while his account was at that time the debtor ; due to reversal of the check against the flow for 7900 euros (date Value October 26, 2005) and that he did not enjoy any overdraft.
Whereas the Caisse d'Epargne, which in his professional capacity necessarily know what type of widespread fraud and failed to alert the client about the possibility of being swindled, breached its duty to warn "The liability of the bank is successful.
June 10, 2010 - Court of Appeal of Rouen
An Internet offers to sell his car on the internet at a price of 8600 € . It becomes contact with a buyer who lives in the United Kingdom, which sends a cashier's check in the amount of € 13,000 including € 4,400 for transportation and delivery. On December 11, 2006, the check was cashed. On December 15, 2006, he was passing his account the sum of 4,400 € for the pseudo-carrier pay via Western Union.
The Court of Appeal of Rouen:
"A bank is under an obligation of vigilance, as such, it must check the formal validity of a check presented for payment.
(...)
it is not established that the Caisse Régionale de Crédit Agricole Mutuel or adherent of the French Association of Banks, which would have alerted its members about the scams carried out by means of bank checks from Bank of Ireland and has was recipient of the information of the same order issued by the RTC, as appropriately, the trial judge noted that it was on the RTC of fraud specific to that bank;
(...)
The individual did not characterize failure of the bank to his diligence, his damages resulting from its own imprudence "The liability of the bank is not accepted.
November 4, 2010 - Court of Appeal of Pau
A user comes into contact with a certain Jennifer Smith, who appears as owner of a textile company in London who need to find someone capable to collect payment on behalf of its European customers. Thus, the user checks cashed , is retained a 10% commission and remitted the remaining money to Jennifer Smith by Western Union. May 2, 2007, deliver a first check of 7000 € issued by Bank of Scotland. May 24, it shall withdraw € 6300. June 18, she is informed that the check was a forgery.
The Court of Appeal of Pau
"In any event, the banker does not interfere in the affairs of his client and Ms. X did not tell the banker the conditions under which the check had been delivered. According to the exchanges between Mrs. X and Miss Smith, on the net that Mrs. X has agreed to undertake this transaction without asking for collateral, it has taken no information on his interlocutor and the textile company. She did not worry when his interlocutor who normally lived in the United States asked him to send the warrant in Nigeria. No fault can be imputed to the bank.
(...)
Madame X indicates that the bank did not meet the deadline of Article L.131-49 of the Monetary and Financial Code and has conducted a cons improper award by doing more than a month and a half after the check presentation to the award against the check issue. However, the check in question was not issued in France and it was not payable in France. This section shall not apply to this case. There is no time cashing checks payable to individuals overseas. "
The liability of the bank is not accepted.
November 8, 2010 - Court of Appeal of Colmar
On 7 May 2007, a visitor filed a € 5,500 check into his bank account and made various withdrawals to make transfers via Western Union. Subsequently, the check turned out to be false.
For Court of Appeal of Colmar:
"If the bank is obliged to check the formal validity of the check for collection, it can not substitute its customers to prevent them from having the funds before the account is credited.
(...)
S he findings show that it has demonstrated very naive in agreeing to send money through Western Union so that the consequences of this mode of Payment is immediate. The only identity of the beneficiary of the transfer was enough to make suspicious. The corresponding internet name is Nicholas Ellis said while the transfer was made on behalf of Marcus Smith. The Caisse d'Epargne had no power to prohibit the availability of funds prior to cashing the check. ; If this type of scam is common, the appellant can not make comparisons with other French banks because the check was drawn on a bank really existing. "
The liability of the bank is not retained .
And as regards the responsibility of the postal bank or Western Union?
April 26, 2010 - Court of Appeal of Douai
A person address via Western Union money to a knowledge based in the United Kingdom. It appears that the money is withdrawn by a person, not being the legitimate beneficiary.
In the Court of Appeal of Douai:
"The parties are bound by a contract Depository as defined by sections 1921 and 1937 of the Civil Code. Under these laws, the Postal Bank has an obligation to make the identical thing she has received that which was indicated to receive it, and it remains bound to his obligation to his client who gave him the money, even if it was not at fault, unless it is shown to be exempt from liability, the applicant has committed misconduct.
(...)
Under these conditions, in the absence of any proven fault of the applicant, the postal bank does not disclaims its responsibility as custodian funds that his correspondent was defeated on a false presentation of the beneficiary and without justification to have made audits ID required.
The liability of the bank is successful.
July 8, 2010 - Court of Appeal of Rennes
A user decides to buy a vehicle on the internet and choice s' stops on an Audi at a price of € 13,900. On February 18, 2005, he made a first transfer of an amount of 4320 € to the vehicle owner. On February 22, 2005, he sent the sum of 10,080 € via Western Union to an acquaintance. But the money is withdrawn without the intervention of that knowledge. Indeed, the seller had obtained a copy of Western Union slips. The vehicle will never be delivered.
The Court of Appeal of Rennes
"The contract between the Postal Bank and Mr. X is a repository for funds transfer and delivery to a recipient residing abroad. And by applying Articles 1932 and 1937 of the Civil Code, the trustee is required to return the identical thing deposited, to the person who confided her or him in whose name the application was made or one that has been shown to receive it.
Under these laws, the Postal Bank shall continue its obligation to refund to the customer who gave him the money, even if it was not at fault, except to establish the responsibility of the applicant or an officer thereof. She is also holding an obligation of means to check or have checked by his partner who is the recipient of the award of funds.
(...)
supply by Mr. X of the information on the packing slip does not in itself the desire to circumvent the conventional rules, but it allowed for cons writing and the presentation of a receipt slip for all the particulars necessary to the delivery of funds.
Nevertheless, the postal bank as custodian is obligated to ensure the delivery of funds, through its partner, the beneficiary designated by the sender, by performing the verification of his identity. The identity card presented is certainly not that of Mr. Y and the control of concordance between the beneficial and that the bearer of identity card presented was clearly not made.
The reckless misconduct of Mr. X, but also the culpable negligence of the Postal Bank contributed to the remittance issue, each party committing half of its responsibility "The liability of the bank is successful in part.
Key points of all these decisions? It is clear that the judge is increasingly reluctant to hold any responsibility for the bank. If the bank is under a duty of information and advice, it is also required an obligation of non-interference in the affairs of the account holder. Nevertheless, in tool used to conduct the transfer at issue, it appears that the few judges who were asked to rule on the subject have accepted the responsibility of the transfer tool in that it has breached the obligation to verify that the rightful recipient of funds was the person presenting themselves at the counter.
Sources:
CA Besançon, 05/05/2010, Anthony X v. SA Caisse d'Epargne de Franche-Comte (unpublished)
CA Paris, 06/05/2010, Societe Generale v. Rita X (unpublished)
Aix-en-Provence, 06/05/2010, Bernard X c / Caisse d'Epargne SA Provident Côte d'Azur (unpublished)
CA Rouen, 10/06/2010, Benjamin X v. Regional Bank of Credit Agricole Normandie Seine Mutual (unpublished)
CA Pau 04/11/2010 Veronique X v. Regional Bank of Credit Agricole Pyrénées Gascogne mutual (unpublished)
CA Colmar, 11.08.2010, Marie-Claire X c / Caisse d'Epargne d'Alsace and Welfare (unpublished)
CA Douai, 26/04/2010, SA Banque Postale v. Cindy X (unpublished)
CA Rennes, 08/07/2010, SA Banque Postale v. X Bruno (unpublished)
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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