Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Further to Prof Rickett's comments re incorrect debits to bank accounts, I would add that the same point is made by Peter Birks in Restitution and Banking Law, at p 223, in the course of discussing a problem which I consider in my chapter in that book, viz whether the bank or the customer's fidelity insurer should bear the burden of paying for a customer's loss when the customer's employee fraudulently withdraws money from the customer's account. Peter convincingly argues that the loss should always be borne by the bank, for the reason that in law the customer never suffers an insured loss - since the bank had no mandate from the customer to debit the account, it continues to owe the customer the sum which it wrongly debited from the account, or in the case of an overdrawn account, continues to be entitled to the smaller sum prior to the wrongful debit. The many American cases touching on this issue, cited in my chapter, appear to overlook this point entirely - as do I, mea culpa.

Charles

_____________________________
Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

tel: 0171 873 2290
fax: 0171 873 2465