15. While it is true that the remittances of funds that customers make in the context of opening and operating checking accounts are all loans granted to the banking establishment, the fact remains that these Loans are operations incidental to a service provided by the banking establishment: the provision of means of payment (A). However, from being optional, this has become necessary, thanks to restrictive regulations with regard to cash payments (B).
A – Accessibility of the customer’s loan to the provision of payment services
16. For a very long time, customers have requested the opening of a bank account to benefit from the possibility of ordering transfers. From the second half of the 19th century, this was joined by the issue of checks; that, from the 1960s, of being able to use a credit card; then finally, since the 1990s, to be able to accept monthly direct debits. In doing so, the client gained an effective advantage, a privileged position. If everyone had access to coins and then to bank notes, the question of their volume being irrelevant here, it was only reserved for a segment of the population to resort to intra-bank transfers or even interbank transfers, to use a checkbook and a bank card. Opening the checking account offered a privilege to its holder, a source of pride of which Les Grandes Familles, a film by Denys de la Patellière (with Jean Gabin), is the colorful testimony. Also, as long as payment instruments for “scriptural money” were a rare commodity, the transfer of funds to a banker with a view to opening a checking account was certainly technically a loan granted to the banker; but an insignificant loan in the mind of the client, incidental to a more essential, main operation, that of signing an agreement for the provision of cash services whose object was the use of these means of payment.
17. About thirty years ago, the late Professor François Grua demonstrated with talent the existence, alongside the “deposit of funds in the bank”, of a contract for the provision of payment instruments or withdrawals of funds. money between the bank and its customer. Whether or not these two contracts were concluded in execution of a framework contract for banking services, the thesis that this author defended, does not matter to us at this stage. The main thing is to note with him that “the provision of a checkbook or a card constitutes a contract in itself, distinct from both the account agreement and the payment mandates to which the issuance of checks gives rise or use of the card »29. Practice confirms its accuracy. In addition to an account opening agreement, credit institutions have their customers sign an agreement relating to checkbooks, bank cards and direct debits at the same time. This contract places the banker’s obligation to deliver the card and checkbook promised to the customer and to guarantee their security and effectiveness; while the customer undertakes to keep them with care and to promptly oppose them in the event of loss, fraud, theft or receivership or judicial liquidation of the beneficiary. This contract is also the source of responsibility for the banker, who, in return for the social risk created by the distribution of checkbooks, must legally assume the payment of bad checks of €15 (C. mon. fin., art. L. 131-82), as well as checks issued without funds despite an entry in the central check file and the consequent obligation for the drawee bank to have the checkbooks returned (C. mon. fin., art. L. 131-81).
18. Certainly, Professor Grua did not comment on the nature of the particular legal link uniting the transfer of funds made when the account was opened to this contract for the provision of payment instruments. In other words, he neither affirmed nor refuted that one was incidental to the other. He also believed that an account could be opened without a checkbook and bank card. For our part, we believe that no customer spontaneously seeks this situation; this only occurs, under the aegis of the Bank of France and with regret, in application of the right to an account. Contracts for the provision of checkbooks and bank cards are in practice systematically signed by customers who entrust their funds to a banking establishment: proof in our opinion that the loan granted to the banker is understood by the customer less as such. ‘in order to benefit from payment instruments. This was at least the analysis that could have been defended when few customers used a checkbook and, later, a bank card. However, it is clear that today opening a checking account no longer responds to the search for an advantage, but to a vital necessity.
B – The need to provide means of payment
19. The privilege of holding means of payment has faded with the commercial policy of credit institutions to multiply the number of its customers. In fact, many households had them. This democratization of the use of these means of payment does not seem sufficient to open a new era and disrupt the legal analysis presented above. The tipping point lies rather in the regulations which, little by little, have prohibited the use of cash in a certain number of regulations: that of tax, that of wages and salaries, and that of traders for payment of their goods. Today, it is no longer possible to pay local or national tax in hard currency above €300, nor to pay an employee or civil servant in coins and notes above €1,500. , nor pay in cash for consumer goods in any store for an amount greater than €1,000 (D. n° 2015-741, June 24, 2015). By prohibiting such payments through the tradition of fiat money, the regulatory power forces French citizens to open a bank checking account, the only way to make higher payments, those permitted by the means of payment (scriptural “money”). ) which are the checkbook, transfer, direct debit and bank card.
21. Since force majeure disrupts everything, in particular the liability of a party or the survival of the contract at the stage of its execution, such necessity causes at the stage of formation of the contract the mandatory application of a special rule derogating from common law contracts: proof by witnesses of the necessary deposit is received even between non-merchants and even when the deposit concerns a value greater than €1,500 (Civil Code, art. 1950). The Civil Code even provides special rules regarding the execution of this particular deposit. After qualifying as necessary deposits the fact for a traveler to entrust luggage, clothing and objects to a hotelier or innkeeper, the Civil Code specifies that they are responsible for the theft or damage caused to these effects, whether it occurs ‘an attendant or a third party coming and going in the hotel. It further provides and among other things that this liability is unlimited and does not admit of any exemption or limitation clause of liability, even though these clauses are lawful under common law, if at least the hotelier has agreed to take them in hand or refused them for an illegitimate reason (C. civ., art. 1953). “In all other cases”, the compensation for theft or damage is set at one hundred times the daily rental price of the accommodation.
22. If the necessity is such as to disfigure the legal regime of the deposit contract, nothing hinders on a conceptual level the recognition, by analogy, of the figure of the necessary contract for payment services and consequently, since it is the accessory, that of the necessary loan even though neither the Civil Code nor any other code recognizes it. Opening a checking account lends itself readily to this exercise. Ordered by a necessity born from a legal ban on using cash for payments of small amounts, the signing of a checking account agreement with a credit institution, if it is equivalent, as we think, to lending money. money to this establishment, calls for an adaptation of the loan rules linked to the need to obtain payment instruments. Not so much an adaptation of the rules for forming the contract, since by hypothesis the bank submits an agreement for the client’s signature; but an adaptation of its execution regime, like the necessarium depositum of Roman law.
23. This analysis justifies a whole series of contemporary provisions which protect customers when opening an account. This necessity makes it possible, for example, to understand that in application of Annex 1 of Decree No. 2008-1484 of December 22, 2008, the opening of a first bank account in the name and on behalf of a minor is analysis into an administrative act that can be freely undertaken, in legal administration under judicial supervision, by parents who exercise parental authority and, under guardianship, by the guardian. On the other hand, when this necessity ceases, because it involves opening a second or umpteenth checking account, the operation is logically qualified as an act of disposition: a loan in fact involves transfer of ownership and a risk non-reimbursement, unlike a deposit, which remains the property of the depositor. By authorizing, by exception, the minor to open alone an A booklet (C. mon. fin., art. L. 221-3) or a youth booklet (C. mon. fin., art. L. 221 -4), the law undoubtedly assumes that the loan granted by the minor does not involve any financial risk for him. This necessity also justifies the law being attentive to the pricing conditions that banking establishments impose on their customers. Their general conditions must be made available to customers (C. mon. fin., art. R. 312-1); they must always be available on a paper or durable medium (C. mon. fin., art. L. 312-1-1, I) and the content is regulated by a decree of September 5, 2018, under penalty of a fine of €1,500 maximum (C. mon. fin., art. L. 351-1, al. 2). The same applies to the conditions of use of the account and the price of the various services to which it gives access, which must be provided to customers on paper or durable media (C. mon. fin., art. R. 312-1, al. 2), except that no sanction is attached to their breach. Professor Grua believed that the objective of this provision was to be able to presume “with sufficient plausibility” customer acceptance.31. Such an argument seems tinged with illusion to us because few people really read them. In our opinion, it is rather a question of the law requiring bankers to provide their clients at any time, not just before signing, with material proof of the remuneration obtained under necessity, in the event that these would like to challenge them subsequently.
24. This necessity finally allows us to understand the reasons why the Murcef law requires banks that want to modify their general and pricing conditions to provide the draft modifications to their customers on paper or durable media at the latest two months before the date. of application envisaged (C. mon. fin., art. L. 312-1-1 IV). Customers should be informed that they are deemed to have accepted the changes if they do not notify their bank of their refusal to accept them. If they provide this notification of refusal, the bank can certainly terminate the agreement, but without costs or penalties before the proposed date of entry into force of its modifications. These provisions, which are totally derogatory from the common law of modification of contracts, which requires the unanimous and express consent of the parties, would be unintelligible if we did not keep in mind that checking accounts are only opened following a necessity and not as a result of informed negotiation. Beyond these provisions which this analysis considers to be able to shed light, it may even be that the necessity of these loans, if it were recognized, would be likely to influence, in the relationship between the banker and his client, the interpretation of the provisions relating to unfair clauses (Consumer Code, art. L. 212-1 and L. 212-2) and contractual imbalance (Civil Code, art. 1171). It is now up to litigants and the courts to take up this subject and contribute to restoring a lost balance.
