For a few years, the UFC-Que Choisir Alert the public on risk of attacks on the automatic ticket distributor (DAB): criminals expect that a customer has inserted their bank card and composed their code Secret to attack it and grasp, on the keyboard, a large sum, before fleeing with money. The customer who requests the reimbursement of the stolen sum generally comes up against a refusal of the bank.
m. X, which was thus stripped of 900 euros, on February 5, 2018, to a DAB from Crédit Lyonnais (LCL), has just been condemned by the justice system. This victory should delight the “some fifty people” who, each year, file a complaint for aggression at DAB, and who are identified by the Safety Observatory of Payment means … but also those who give up crossing the doors of the doors of the doors of the doors of the doors of Commissariats, while speaking on social networks.
On June 20, 2018, Mr. X assigned Crédit Lyonnais, to obtain the reimbursement of his 900 euros, as well as damages.
He invokes the provisions of the Monetary and Financial Code which impose on the banker to repay “immediately” an “unauthorized payment operation” (article l133-18 ). And those who unload the customer from any deductible (50 euros), when his responsibility is “not engaged”, because “the unauthorized payment operation was carried out by diverting, without his knowledge, the instrument of Payment or the data related to it “(article l133-19 -ii).
notion of consent
Crédit Lyonnais disputes that his client has been the victim of such an operation: he would have “authorized” the withdrawal, by composing his secret code. Interbank regulations for card withdrawal says that it is enough that the card holder hit this code on the keyboard so that he “gave its consent ” to the withdrawal operation.
The latter is then considered to be finished, it does not matter that a third party has, by force, composed the amount. Mr. X would therefore have been the victim of a “flight of species” (qualification which appears on the without follow -up classification of his complaint). This one, like a flight of portfolio, does not concern the bank: thesis valid that the judicial court of Paris, May 7, 2021.
m. X is appeared in cassation. His lawyer maintains that when the criminal composed the amount of withdrawal, the operation of the same name was, necessarily, in progress. Since the criminal has “taken the direction”, it has the characteristics of a “fraudulent withdrawal”, opening the right to the application of the Monetary and Financial Code.
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