Restitution Discussion Group Archives
| Sender: |
Look Ho |
| Date: |
Tue, 8 May 2001 05:44:27 -0700 |
| Re: |
Bank Mandate |
************************************* If the question is whether, having recovered
from the payee, the bank could keep both lots of money, it does not
sound right. Surely the indemnity between banker and customer is just
that, an indemnity; the customer promises to indemnify against loss;
once the bank has recovered from payee, there is no loss, and the bank
would have to re-credit the account. The customer might even have a
security interest under Lord Napier & Ettrick. The fax-instruction indemnity
against loss is not the same as authority to debit the account. It is
more like a consensually created estoppel. I was indeed postulating an evil bank trying to keep
both lots of money. I agree that the loss analysis might be one way to
argue about it, though strictly speaking this is not what the contract
says. The Payor agreed to "irrevocably authorise the bank to debit the
Payor's account immediately with all sums paid by the bank in respect
of such instructions". I have seen indemnity with the same wording, though
wholly unrelated to my hypothetical. Perhaps some sort of implied term
is necessary to achieve the re-credit.
Look
Lionel Smith wrote on 5/7/01 3:51:31 AM
*************************************
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