Extract
[...] However, what about the bank in this case? If the latter cannot interfere in the company's affairs, it has, however, verified, as recalled in the grounds, the signature of the check with the specimen provided by the account holder, after verification, namely the implementation of its duty of vigilance, the bank did not detect any anomaly since, as sovereignly noted, the checks were actually similar to the genuine signature. Conversely, if the signature had presented detectable differences by a normally vigilant professional, then yes, the bank would have been responsible for having paid the checks and would have had to pay the company again, because who pays badly, pays twice However, this is not the case here, since the employee fraudulently reproduced the signature so well that the defect of surveillance » can only be reproached to the company, which is to its dismaythe exclusive cause of the payments reproached », this which allows the commercial chamber of the Court of Cassation to release the bank with regard to the company and, by exception, to exempt it from its liability. [...]
[...] The firm refusal of the right to reimbursement of the account holder victim of counterfeit cheques In inscribing itself in the jurisprudential line recognizing that a bank can 'to be entirely exempt from liability if it is established that the payment was solely due to a fault attributable » The Court firmly affirms a refusal to reimburse the client who was a victim of counterfeit cheques. The position is particularly firm, especially since the issuance of fake cheques spanned five years with a total of 116,118.17 euros, which is colossal. [...]
[...] Although such a failure to exercise due diligence by the banker is not highlighted due to the bank's exoneration from the company's fault, the latter could not ignore the small anomalies that these operations presented over the long term. Therefore, considering a sharing of responsibility on a par with the danger posed by the monetary instrument of the check would perhaps be fair, as perhaps the employer of the employee maintained a relationship of trust with her and the other employees to such an extent that he did not see these check payments pass during these many years, far from suspecting such a scheme. As recalled by Professor J. [...]
[...] For this reason, the appeal invokes Article 1147 of the Civil Code in support of its claims aimed at establishing the bank's liability for having, without verification, paid the cheque bearing the forged signature of the account holder opened in its books and credited the same cheque to the personal account of the perpetrator of the forgery. In addition, in order to illustrate the firmness of the Court's position, the appeal also invokes Articles 1937 and 1992 of the Civil Code as well as Articles L.131-2 and following of the Monetary and Financial Code to argue in favor of an absence of fault on the part of the company victim of the careful concealment of the employee's misappropriation, such that the company could not have noticed it while the bank should have been alarmed by the 'fraudulent destination of cheques ». [...]
[...] LASSERRE CAPDEVILLE, a sharing of responsibility is often considered by the judges. However, this is not the case in the present judgment, and one could wonder if it would not be time for the Commercial Chamber of the Court of Cassation to orient itself towards such a relaxation, as the judgment indeed recalls for bank customers who must be particularly vigilant in the management of their account, but the exoneration of banks subordinated to the proof of a fault by the client softens the scope of the duty of vigilance, which must indeed remain an exception, but for cases where the operations extend over 5 years, it was a matter of right that the company should have taken action against the bank's failure to exercise due diligence. [...]
