The Explanation of the Legal Liability of the Transferring Bank in the Electronic Funds Transfers

دانشنامه حقوق اقتصادی

Article 3, Volume 24, Issue 12, May 2017, Pages 43-66   

Document Type: Scientific research

DOI: 10.22067/le.v24i12.61914

Author

mahboubeh abdolahi^*

Islamic Azad univercity. Dezful Branch

Abstract

Electronic transaction means any exchange of funds where, at least, one operation is conducted using electronic means. In such transactions, operations are mainly performed by the transferring bank, which is the bank ordered by the issuer of payment order to carry out the transfer of funds. In this kind of transactions, although it is the customer that directly requests the transaction from the transferring bank, several other factors have a role in the transaction including the banking systems, mediating bank, telecommunication and internet service providers and even the customer's action, and it is not clear what obligation the transferring bank has to the customer and what it is based on when transaction is not properly performed; is this bank liable for the actions of people who collaborate with it or not? In the present article attempt is made to analyze the existing regulations including guidelines approved by the Central Bank, and conduct a comparative study of UNCITRAL Guide on the electronic transfer of funds to explain the basis and limits of the transferring bank's liability in such transactions, and suggest complementary solutions to these regulations.
In international level, UNCITRAL has created two documents in this regard. These documents are UNCITRAL Legal Guide on Electronic Funds Transfers provided in 1987 and UNCITRAL Model Law on International Credit Transfers approved in 1994. UNCITRAL’s aim is that policy makers use these documents as a model to approve and analyze the legislations related to this field, thus, eventually, all countries may have uniform laws which may prevent any probable conflict.
In Iranian law, no exhaustive legislation has been approved and the only existing provisions in this regard are certain e-commerce laws of the Central Bank’s instructions such as instructions on drawing payment and fund transfer order and regulations for payment service providers. In addition, an adjoining contract will be made between the bank and the customer on which the legal relation between the two parties is based. For instance, the legislator has not explained the kind, basics, and limits of the bank’s responsibility and the ways of disclaiming bank’s responsibility. Legal system regarding the banks’ responsibility in classic banking cannot satisfy the need for electronic transactions because their mechanism is completely different from the classic one.
It seems that bank’s liability against the customers is a professional responsibility which is a combination of conventional and civil liability called legal liability. The bank as a profession owner is liable against the customer and if it violates its conventional commitments or legal requirements, it will be liable. In addition, Bank liability is a strict liability, which means that when a transaction is not carried out correctly and the customer incurs loses, there is no need to prove fault to claim damages from the bank. Moreover, given that under the contract with the customer, the bank is required to carry out the transaction correctly, and according to the theory of professional liability, the bank is liable for the actions of collaborators and those whose services it uses to fulfill this obligation including telecommunication service provider, the mediating bank, or the mutually beneficial center, and proof of damages to the bank cannot relieve the bank from its obligations to the customer, and it is only through proof by the force major or customer's fault it can be exempted from liability.
In some transactions such as the payments by the ATM machines, it is difficult to prove that the loss had been made by the client or a third person who has had access to his or her account through criminal acts, tricks, or frauds. It is possible that the customer has given his/her card and its password to another person advertently or inadvertently or the third person has forged the card and could get access to the password through penetrating the system. In such cases, the petitioner has a major problem, and that is proving the dispute. In the American and UK law, to overcome this problem and avoid involving the courts in the complex process of proving the dispute, it has been anticipated that when a customer's card has been abused, damages should be shared by the bank and the customer without the need to prove loses due to customer action, so that a ceiling is considered for customer liability.
Given the above, to reform Iran's legal system with respect to the banks' liability in electronic transactions, it is necessary to develop a comprehensive law in this respect. It is recommended that in developing these regulations, the bank's strict liability in performing correct transactions and its liability for deficient means of banking and actions of its collaborators including telecommunication service providers should be explicitly asserted in order to avoid the need for judicial arbitration. Moreover, when there is doubt that customer is at fault, it is recommended that the American legal solution should be used to facilitate the flow of disputes, and divide the liability between the bank and the customer, by setting a ceiling for customer liability.

Keywords

payment order; electronic fund transaction; civil liability of bank; Electronic banking; professional liabililityty

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