Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Fri, 7 Aug 1998 09:05:03 +0100 |
| Re: |
Bank overcharging customers |
On Fri, 7 Aug 1998,
Prof Charles Rickett wrote:
My view is that there is no loss at all to the
customer - nor any enrichment to the bank. There is no "money" which belongs
to the customer. Any "money" belongs to the bank, since money deposited
becomes the bank's property. The customer is not therefore "losing" money.
Nor is the bank making any enrichment at the customer's expense. It is
just that the bank is (wrongfully) refusing to admit the proper extent
of the debt it owes the customer. This sort of thing happens when banks
pay out on forged or countermanded cheques where (subject to a Liggett
or Cleadon "equity") there is no basis on which the bank can lawfully
debit its customer's account. If the bank does debit the account, the
customer's avenue of redress is probably a declaration that the debit
was unlawful (and perhaps if necessary rectification of the account statement
to record the correct position). Well, my suggestion was not that the remedy was necessarily
an action for damages, but that it was a *contractual* remedy. As to whether
the remedy was for a contractual debt or for damages, I was not sure then
and am not sure now; we'd have to flesh out Eoin's hypothetical a bit
more. Certainly there *are* cases where a failure to pay a debt has been
regarded as a breach of contract, sounding in damages; if you were to
say that none of them were in a banking context I'm not in a position
to say that you are wrong.
Steve Hedley, Faculty of Law, University of Cambridge
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