The OLG Celle recently made one of the rare court decisions in the area of payment services law, OLG Celle, notification decision of November 17, 2020, 3 U 122/20
What was it about?
The (obviously entrepreneurial) plaintiff had a current account with the defendant bank.
There were powers of attorney for this account.
The defendant received a SEPA transfer slip for € 19,831.76.
This had a signature that roughly matched the deposited signature of an authorized representative.
In fact, the transfer receipt was forged.
As a result, there was a phone call between an employee of the bank and one of the plaintiff, the content of which is in dispute.
After the forgery was noticed, the booking and payment from the plaintiff’s account with the defendant could no longer be reversed. The bank refused to refund.
Decision of the OLG Celle
First of all, the OLG Celle correctly states that the plaintiff is not authorized and that there is a claim for reimbursement according to Section 675u sentence 2 BGB.
The OLG Celle also agrees with the prevailing view that it does not matter whether the forgery is recognizable, as Section 676c No. 1 BGB is not applicable. In addition, the forgery was also not undetectable. The risk of counterfeiting therefore generally lies with the bank.
The OLG Celle also rejects contributory negligence on the part of the plaintiff. Because after the disputed phone call in which the plaintiff’s employee had confirmed the transfer, the employee acted at least not grossly negligentwhat would be necessary for a claim for damages by the bank according to § 675v BGB.
The last point in particular is by no means a matter of course and is relevant for practice, since the OLG Celle sets the threshold for gross negligence appropriately high and thus the bank’s claims will be difficult to justify.
Importance for practice
Court decisions in payment services law are rare. Credit institutions usually shy away from legal disputes.
In practice, cases of credit card misuse and abuse in online banking are frequent and there is a regular dispute about whether the customer has given the criminals access to his security features through a grossly negligent act.
The banks regularly fail to recognize that such a claim for damages not only requires a breach of duty on the part of the customer, but also a grossly negligent breach of duty.
Detailed information on the legal situation here.
Advice makes sense
Attorney Koch has therefore successfully enforced reimbursement against numerous banks and savings banks in comparable cases.
If you are also harmed, we offer an examination of your claims by a qualified specialist lawyer for banking and capital market law. The initial assessment is free of charge and without obligation.
For clients with legal protection insurance, we obtain the cover letter from their insurance company free of charge.
Lawyer Sebastian Koch
Specialist lawyer for banking and capital market law
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