Bank fraud: can a bank be held responsible for a fraudulent transfer?
When a scam occurs and a transfer has led to the embezzlement of funds, there is a great temptation for the victim to turn against all actors involved in the payment chain, including the beneficiary's bank.
But in practice, the liability of a banking institution β especially foreign ones β can only be incurred under strict conditions.
π What French law says
Even though litigation often falls under foreign law, some parties sometimes seek to invoke French law to engage the responsibility of a bank. However, French law is very protective of banks on this subject, for both practical and legal reasons.
1. When opening an account: a duty of identification, not investigation
When a bank opens an account with a company, it simply needs to:
- Identify your customer, verify their identity and supporting documents,
- Ensure the apparent coherence of the file.
She does not have to investigate the real activity of her client, unless there is an obvious anomaly.
π If the client company provides valid documents and nothing raises suspicion, the bank fulfills its obligation of vigilance. She is not required to guess possible fraudulent activity hidden behind regular appearances.
2. During the life of the account: an obligation of non-interference
Once the account is opened, the bank does not have to monitor the origin or destination of funds, as long as the operations have a normal appearance.
Indeed, according to settled case law:
- The bank does not have to interfere in its customer's business.
- It cannot block or refuse an operation only if an obvious anomaly is detected (inconsistent amounts, falsifications, visible inconsistencies, etc.).
π‘ The simple fact that the name entered in the title of the transfer does not correspond perfectly to the name of the account is not Not an anomaly in itself, especially in an international context.
3. The case of fraudulent transfers
Even if a customer has been defrauded by a third party and ordered a transfer to a fraudulent company, the beneficiary's bank is not automatically at fault to have credited the account:
- Elle is not a party to the contractual relationship between the payer and the payee.
- She does not know the context or the nature of the commercial or financial transaction.
- Elle simply fulfills its role as a payment service provider, except for an obvious anomalous element.
In conclusion
π A bank can only be held responsible for a fraudulent transfer if it has clearly failed to comply with its due diligence obligations.
π In the absence of any apparent anomaly, she does not have to interfere in her client's business or to question the origin or destination of the funds.
Texts and case law protect this principle, in order to ensure the smooth, predictable and secure functioning of the banking system β especially in an international context.
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